Investigatory Powers Bill (Second sitting)

Debate between Joanna Cherry and Peter Kyle

Thursday 24th March 2016 Public Bill Committees

[Peter Kyle]

Q One of the innovations of the Bill is the double lock. When you were Home Secretaries, most warrants would have been signed just by the Home Secretary. Will the knowledge of having judicial oversight and a second authorisation before the warrant comes in change the behaviour of the Home Secretary when approaching the decision?

Charles Clarke: I tend to doubt it. Speaking for myself and, I am sure, for John—actually, for all Home Secretaries I have ever discussed this with—we have all been exceptionally aware of the severity and seriousness of what we were looking at. I do not think that the idea that there was going to be a judicial review of what we were doing would have changed our behaviour significantly. There is quite a serious, in-principle issue about the role of the judge as opposed to the role of the Executive.

I saw you taking evidence from Lord Judge just now. I bumped into him as I was coming in. The question of the relationship between the judiciary and the Executive is a key point. I gave evidence on it to the House of Lords Constitution Committee in 2007 because I think it has all been changed by the Human Rights Act 1998. I think there has been insufficient consideration of the changing nature of the relations. In response to your particular point, Mr Kyle, I do not believe that there would have been a significant change in behaviour.

Lord Reid: I do not think there will be a change in behaviour from the point of view of the person who is ultimately accountable to Parliament for the decisions, which is the elected Member and appointed Minister. Probably even before RIPA, which I think Charles took through the House of Commons, there was an awareness that there were degrees of oversight and you were working within certain constraints and certainly with oversight.

I confess that where I would worry—you would perhaps say, “Well, he would, wouldn’t he? He was the Home Secretary.”—is in case the judicial oversight became a co-decision. I think that is a recipe, in some cases, for obstacles to the efficient operation of aspects that I mentioned earlier, for instance in a hostage situation. I know that allowances are being made for that.

I guess that the additional oversight—judicial oversight—that is in the Bill is a result of a number of factors. One is the concern—I do not know whether it is public concern; I do not think it is, but it is certainly published concern—over the Snowden revelations, the general distrust of politicians and the fact that there was a Liberal-Conservative coalition. All of this is compromise, is it not?

I have no in-principle objections to it, provided that the first decision is made by the person accountable for it, through Parliament, to the public and the role of judicial oversight is the judicial element of it.

[Joanna Cherry]

Q On 4 November last year, when the Home Secretary introduced the draft Investigatory Powers Bill to the House of Commons, she informed us:

“the acquisition of bulk communications data, both relating to the UK and overseas…is not a new power. It will replace the power under Section 94 of the Telecommunications Act 1984”.—[Official Report, 4 November 2015; Vol. 601, c. 971.]

May I start with you, Mr Clarke? When you were Home Secretary, how many times do you recall authorising the use of

“the power under Section 94 of the Telecommunications Act 1984”

to collect the telephone records of everybody in the UK into a single national database?

Charles Clarke: I do not recall the answer to your question at all, I am afraid; I have not prepared for this meeting, or gone back to my files, so I cannot answer the question. I think what the Home Secretary will have been trying to communicate is that the purpose of this legislation is to update legislation in the light of massive technological change, even since 1999, when I took the RIPA Bill through Parliament. As you will recall, that was to make what was being done compliant with the Human Rights Act, which required us to have a basis on which all of this was understood. Previously, this had all been done without any basis, and I was very proud to take that legislation through.

I said at the time—if you go back to the records of those hearings—that it would be necessary to update that Bill as technology moved forward, and I think that is what the Home Secretary meant in what she said. However, I apologise that I cannot give you the precise answer that you are looking for.