Investigatory Powers Bill (Thirteenth sitting)

Keir Starmer Excerpts

Committee Debate: 13th sitting: House of Commons
Thursday 28th April 2016 Public Bill Committees

Investigatory Powers Commissioner and other Judicial Commissioners

[Keir Starmer (Holborn and St Pancras) (Lab)]

I beg to move amendment 741, in clause 194, page 148, line 36, at beginning insert—

“( ) There shall be a body corporate known as the Investigatory Powers Commission.

( ) The Investigatory Powers Commission shall have such powers and duties as shall be specified in this Act.”

[The Chair]

With this it will be convenient to discuss the following:

Amendment 742, in clause 194, page 148, line 40, at end insert—

“(1A) The Investigatory Powers Commissioner must appoint—

(a) the Chief Inspector, and

(b) such number of inspectors as the Investigatory Powers Commissioner considers necessary for the carrying out of the functions of the Investigatory Powers Commission.

(1B) In appointing investigators the Investigatory Powers Commissioner shall—

(a) appoint an individual only if the Investigatory Powers Commissioner thinks that the individual—

(i) has experience or knowledge relating to a relevant matter, and

(ii) is suitable for appointment,

(b) have regard to the desirability of the investigators together having experience and knowledge relating to the relevant matters.

(1C) For the purposes of sub-paragraph (1) of subsection (2B) the relevant matters are those matters in respect of which the Investigatory Powers Commission has functions including, in particular—

(a) national security;

(b) the prevention and detection of serious crime;

(c) the protection of privacy and the integrity of personal data;

(d) the security and integrity of computer systems and networks;

(e) the law, in particular, as it relates to the matters in subsections (2B)(a) and (b);

(f) human rights as defined in section 9(2) of the Equality Act 2006.”

Amendment 743, in clause 194, page 149, line 23, at end insert—

“(7A) The Chief Inspector is an Inspector and the Chief Inspector and the other Inspector are to be known, collectively, as the Inspectors.”

Amendment 744, in clause 194, page 149, line 31, at end insert—

“(c) to the Investigatory Powers Commission are to be read as appropriate to refer to the body corporate, the Investigatory Powers Commission, and in so far as it will refer to the conduct of powers, duties and functions, those shall be conducted by either the Judicial Commissioners or the Inspectors as determined by this Act or by the Investigatory Powers Commissioner, consistent with the provisions of this Act.”

Amendment 753, in clause 196, page 150, line 21, leave out “Commissioner” and insert “Commission”.

Amendment 754, in clause 196, page 150, line 38, leave out “Commissioner” and insert “Commission”.

Amendment 755, in clause 196, page 151, line 18, leave out “Commissioner” and insert “Commission”.

Amendment 756, in clause 196, page 151, line 41, at end insert—

“(4A) The powers and functions specified in this Part will be exercised by the Inspectors under the supervision of the Investigatory Powers Commissioner, except in so far as those powers are powers of the Judicial Commissioners specified in Parts 1 to 8 of this Act.”

Amendment 749, in clause 196, page 151, line 43, after “Commissioner”, insert “or Inspector”.

Amendment 757, in clause 197, page 152, line 28, leave out “Commissioner” and insert “Commission”.

Amendment 758, in clause 197, page 152, line 35, leave out “Commissioner” and insert “Commission”.

Amendment 789, in clause 199, page 154, line 11, leave out “Judicial Commissioner” and insert “Investigatory Powers Commission”.

Amendment 790, in clause 199, page 154, line 18, leave out “Judicial Commissioner” and insert “Investigatory Powers Commission”.

Amendment 794, in clause 200, page 154, line 34, leave out “Commissioner” and insert “Commission”.

Amendment 795, in clause 200, page 154, line 34, leave out “and the other” and insert “, the”.

Amendment 796, in clause 200, page 154, line 35, after “Commissioners”, insert “and Inspectors”.

Amendment 797, in clause 200, page 154, line 41, leave out “Commissioner” and insert “Commission”.

Amendment 798, in clause 201, page 156, line 38, leave out “Judicial Commissioners” and insert “the Investigatory Powers Commission”.

Amendment 799, in clause 201, page 156, line 41, leave out “Commissioner” and insert “Commission”.

Amendment 800, in clause 201, page 156, line 47, leave out “Judicial Commissioners” and insert “the Investigatory Powers Commission”.

Amendment 802, in clause 201, page 157, line 7, leave out “Judicial Commissioners” and insert “the Investigatory Powers Commission”.

Amendment 803, in clause 201, page 157, line 11, leave out “Judicial Commissioners” and insert “the Investigatory Powers Commission”.

Amendment 816, in clause 202, page 157, line 43, leave out “Judicial Commissioner” and insert “the Investigatory Powers Commission”.

Amendment 817, in clause 202, page 157, line 44, leave out “Commissioner” and insert “Commission”.

Amendment 818, in clause 202, page 157, line 45, leave out “Commissioner’s” and insert “Commission’s”.

Amendment 829, in clause 202, page 158, line 1, leave out “Judicial Commissioner” and insert “Investigatory Powers Commission”.

Amendment 819, in clause 202, page 158, line 1, after “Commissioner” insert “or Inspector”.

Amendment 820, in clause 202, page 158, line 4, after “Commissioner” insert “or Inspector”.

Amendment 821, in clause 202, page 158, line 8, after “Commissioner” insert “or Inspector”.

Amendment 822, in clause 202, page 158, line 10, leave out “Commissioner’s” and insert “Commission’s”.

Amendment 823, in clause 202, page 158, line 15, leave out “Commissioner” and insert “Commission”.

Amendment 825, in clause 204, page 158, line 39, leave out “Judicial Commissioners” and insert “Investigatory Powers Commission”.

Amendment 826, in clause 204, page 158, line 40, after “such”, insert “funds”.

Amendment 827, in clause 204, page 158, line 40, after “determine”, insert—

“necessary for the purposes of fulfilling the functions of the Investigatory Powers Commission under this Part”

Amendment 828, in clause 204, page 158, line 41, leave out subsection (2) and insert—

“(2) In determining the sums to be paid to the Investigatory Powers Commission pursuant to subsection (1), the Treasury shall consult the Investigatory Powers Commissioner.”

Amendment 830, in clause 204, page 158, line 42, leave out “Commissioner” and insert “Commission”.

Amendment 831, in clause 204, page 158, line 43, leave out “Judicial Commissioners” and insert “Investigatory Powers Commission”.

Amendment 832, in clause 204, page 159, line 3, leave out “Commissioners’” and insert “Commission’s”.

New clause 19—Funding, staff and facilities of Intelligence and Surveillance Commission—

“(1) The Treasury must, after consultation with the Intelligence and Surveillance Commission as to number of staff and in light of the extent of the statutory and other functions of the Commission, provide the Commission with funds to cover—

(a) such staff, and

(b) such accommodation, equipment and other facilities, as necessary for the carrying out of the Commissioners’ functions.

(2) The staff of the Intelligence and Surveillance Commission must include—

(a) independent technical experts, and

(b) independent legal experts.”

This new clause would require the Treasury to provide the ISC with funds to cover its staff, facilities and accommodation. It would also require that the ISC staff include technical and legal experts.

[Keir Starmer]

We come to part 8, “Oversight arrangements”. Clause 194 deals with the appointment of the Investigatory Powers Commissioner. The second set of amendments to the clause deal with appointments; I will deal with them when we come to that group.

There are numerous amendments in the first group, but they all relate to the structure of the oversight mechanism, because the structure set out in the clause is considerably different from that proposed by David Anderson in “A Question of Trust”. His recommendation 82 was that there should be a new independent surveillance and intelligence commission. In its scrutiny, the Joint Committee on the draft Bill asked why that had not been done, because, according to its recommendation 51,

“the work of the oversight body will be significantly enhanced by the creation of a Commission with a clear legal mandate.”

That was the clear view of David Anderson. The Joint Committee asked why that recommendation was not carried out. The Government response, as I understand it, was that it is too costly. At the moment, that is the only basis suggested for not acting on David Anderson’s recommendation, or that of the Joint Committee.

Our view is that such a commission, with a “clear legal mandate”, would be far better. Unless there is some significant difference in costs, there seems to be no good reason for not having it. Will the Minister tell us what calculations lie behind the suggestion that one model would be very costly and the other not so?

This issue was raised by the Interception of Communications Commissioner’s Office when it gave evidence on the structural divide that it thought there should be between the judicial function and the audit function. In its written and oral evidence, it said it would be more appropriate for those functions to be split, so that the same group of individuals did not look at both aspects. The amendment would create a commission with a clear legal mandate. It would split the functions in a way that those who exercise those functions at the moment think is appropriate. It also challenges the suggestion that the only reason not to implement the recommendation is that it is too costly.

I intend to press the matter to a vote. I will press amendment 741, and if I lose that vote, I will take a view on pressing the others, as there are so many of them, but for the record, I stand by all the amendments.

[Joanna Cherry (Edinburgh South West) (SNP)]

I support the amendments.

[The Solicitor General (Robert Buckland)]

I thank the hon. and learned Member for Holborn and St Pancras for setting out his case. He will be glad to know that there is more to this than mere cost. I say “mere”, but Ministers and parliamentarians have a duty to ensure we do not burden the Exchequer with unnecessary cost. My primary argument is focused on that. The amendments would only put us in the same position as we will be in under the Bill, but at greater cost.

The Home Office estimates that at least an extra £500,000 would be needed to staff and finance the proposed body. That is not an insignificant sum, which is why the Government are urging restraint when pursuing what might seem an entirely rational, reasonable and logical conclusion. I accept that a number of the bodies and individuals mentioned by the hon. and learned Gentleman would support the thrust of these amendments.

[Keir Starmer]

Is there a breakdown of the £500,000, given that this is, in broad terms, a structural proposal, rather than a numbers proposal ?

[The Solicitor General]

The impact assessment published alongside the Bill contains the figure. It is supported by that document, so there has been empirical research. I do not have the full figures, but I imagine that the research is based on estimates of staffing levels. The body would also have to deal with new corporate functions, such as human resources, IT, non-executive directors and procurement, as the hon. and learned Gentleman knows well from his experience as Director of Public Prosecutions. This would be a non-departmental public body similar to, say, the Crown Prosecution Service. As an independent body and a key part of our constitutional arrangements for the prosecution of crime, it would obviously need that structure to maintain its independent role.

The amount of money is not insignificant, and the question I must ask is: what would the measure achieve? I remain unconvinced that it would achieve anything more than the current proposal does, because the powers and duties of the proposed body would remain exactly the same as the commissioner’s responsibilities, and the number of inspectors, technical experts and judicial commissioners employed by the organisation would remain exactly the same.

--- Later in debate ---

[The Solicitor General]

I respect the hon. and learned Lady’s point. I answer it by making the important point that we have stronger oversight if the body is able to look at everything from initial authorisation right through to implementation. The dialogue that can occur will therefore be much more immediate and focused, because the body will have a fuller and deeper understanding of the process. We end up with a body that is independent and flexible and will gain the public confidence that she and I want it to.

The worry is that if we pursue the attractive—seductive, almost—course proposed by the hon. and learned Lady and others and separate the powers, we will end up breaking the important links between the executive and judicial functions epitomised by the Bill. I say “links” in a neutral sense, and not in the sense that one can unduly influence the other—far from it. Rather, the Bill allows for the check-and-balance approach that epitomises the British constitution and its organic development over the centuries in a modern and relevant way. As a Tory, I am proud to stand here and argue for those values.

I want to deal with the Investigatory Powers Commissioner’s functions and the amendments seeking direct negotiation with the Treasury, rather than the Secretary of State, on the resources necessary for the commissioner to fulfil their functions. I think I am on safe ground in saying that my right hon. Friend the Home Secretary would warmly welcome not having to be involved in negotiations with the Treasury wherever possible, but I believe that removing his or her function from this negotiation would be an error.

There will be much more familiarity with the work of the IPC at the Home Office than at the Treasury, so the Home Office can make a far more accurate assessment of the resources that the IPC will need. That is important in ensuring that the IPC is properly resourced. Importantly, there can be meaningful challenge by the Home Secretary if they believe that the IPC is asking for too big a budget and is not providing proper value for money.

I do not think it is right or fair to say that the independence of the new IPC will be somehow compromised if it receives funding through a Secretary of State, because plenty of other non-departmental public bodies receive funding via that route, such as the Independent Police Complaints Commission and Her Majesty’s inspectorate of prisons. It is not an unusual or uncommon position, and we would have heard about it if there was an issue with the compromising of those bodies’ ability to act.

The Treasury has made clear in its guidance, “Managing public money”, that

“Functional independence is compatible with financial oversight”.

I am glad to say that the current oversight commissioners have repeatedly made clear in their annual reports that they have always been provided with enough money to undertake their functions. The same route of complaint will be available to the IPC, and I know that Parliament would take a keen interest if there was any suggestion by the new commissioner that the IPC was under-resourced. For those reasons, I respectfully ask Members to withdraw their amendments.

[Keir Starmer]

I intend to deal with funding under clause 208. I appreciate that new clause 19 is in this group, but that is probably only because it contains the word “commission”, so I will deal with it at a later stage. However, I have listened to what the Solicitor General said.

The amendments are supported by the Interception of Communications Commissioner, who was most concerned about the structural division of the two functions. The Solicitor General says that there are advantages in being able to do an end-to-end review, and that it brings focus; I can see that. If it were an end-to-end review of someone else’s work, that would be a good thing. The structural problem is that, within that end-to-end process, the same team takes the steps and does the overseeing. That is more than just a philosophical issue. It is a practical issue with how oversight works. I am therefore unpersuaded.

[Joanna Cherry]

The hon. and learned Gentleman will recall that Jo Cavan, the head of the Interception of Communications Commissioner’s Office, not only covered that in her written evidence, but was asked about it by me in her oral evidence to the Committee. She reiterated the position that we set out very strongly.

[Keir Starmer]

I know that the Interception of Communications Commissioner feels very strongly on this point. I think that he raised it in evidence, and he has certainly raised it with me. For that reason, I will press amendment 741 to a vote. I will review my position on the remaining amendments, depending on how that vote goes.

[The Chair]

For clarity, we will divide on amendment 741 now. We will then go on to amendments 735, 736, 740, 737, 738 and 739, which the hon. and learned Gentleman may wish to discuss. If he feels like moving the others, he may do so at that time.

[Keir Starmer]

I am happy to do it in whichever way suits the Committee and the Chair.

[The Solicitor General]

We have prayed in aid Jo Cavan’s comments quite a lot, and I think it is interesting that she said:

“It is really important for the commissioners to work very closely with the inspectors and technical engineers and so on who will carry out the post facto audits.”

I am arguing that this is supervision of the agencies’ work, and that the hon. and learned Gentleman’s point would be stronger if it were purely about the commission itself.

[Keir Starmer]

I am grateful to have been reminded of Jo Cavan’s evidence. The Solicitor General is right: there is a mixture of functions, and the oversight has to operate in quite a flexible way in relation to the different functions. However, this is a structural issue, and I therefore press amendment 741 to a vote.

Question put, That the amendment be made.

Division 109

Ayes: 7

---

Labour: 5
Scottish National Party: 2

Noes: 10

---

Conservative: 8

[Keir Starmer]

I beg to move amendment 735, in clause 194, page 148, line 36, leave out “Prime Minister” and insert “Lord Chancellor”.

Amendments 735 to 739 would require that Judicial Commissioners are appointed by the Lord Chancellor on the recommendation of the Judicial Appointments Commission under the Constitutional Reform Act 2003.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 736, in clause 194, page 148, line 36, after “appoint”, insert

“in accordance with the procedure set out in the Constitutional Reform Act 2003”.

See the explanatory statement for amendment 735.

Amendment 740, in clause 194, page 149, line 4, at end insert—

“(2A) The Prime Minister may make an appointment under subsection (1) only following a recommendation by—

(a) the Judicial Appointments Commission;

(b) the Judicial Appointments Board of Scotland; or

(c) the Northern Ireland Judicial Appointments Commission.”

Amendment 737, in clause 194, page 149, line 5, leave out subsection (3).

See the explanatory statement for amendment 735.

Amendment 738, in clause 194, page 149, line 12, leave out subsection (4).

See the explanatory statement for amendment 735.

Amendment 739, in clause 194, page 149, line 14, leave out subsection (5).

See the explanatory statement for amendment 735.

[Keir Starmer]

The amendments are fundamental and important, because one of the main features of the Bill is the role of the judicial commissioners and the role, therefore, of judges in the double lock. The Home Secretary made a great deal of introducing that judicial element when the Bill was published in draft form, and again when it came back before the House in its current form. The Government have repeatedly and understandably emphasised that point throughout the scrutiny process. The amendments are focused on the appointment of the judicial commissioners. The way in which senior judges are appointed in this country has evolved over time, but we now have a clear and agreed way that has gone through numerous processes and consultations, with numerous recommendations on how it should properly be done.

We welcome the fact that, following the pre-legislative scrutiny, the provisions in clause 194 have been amended, but it remains the case that the Prime Minister will appoint the judicial commissioners, which is most unusual. The change from the draft Bill is that the Prime Minister must now consult the Lord Chief Justice. That is a step in the right direction, but it is fundamental, under our unwritten constitution, that judges are appointed independently of the Executive and those in political positions, and are not appointed by the Prime Minister.

The step of requiring the Lord Chief Justice to be consulted does not go as far as the Joint Committee on the draft Bill wanted. It recommended that the Lord Chief Justice be responsible for appointing the commissioners, to “ensure public confidence”. It was clear about how the separation of powers should operate in this important field. The Joint Committee also recommended:

“The Judicial Appointments Commission must also be consulted to ensure that the appointments procedure is fair and transparent.”

It wanted a move away from the Prime Minister making the appointments to the Lord Chief Justice doing so, drawing on the Judicial Appointments Commission, which was set up to ensure the transparency and independence of the appointments regime.

In short, the Prime Minister should not be involved. The Interception of Communications Commissioner’s Office agrees, stating in its evidence to the Joint Committee:

“It is inappropriate for the Judicial Commissioners to be appointed by the Prime Minister”.

It, too, said there should be a role for the Judicial Appointments Commission. As I said, the Judicial Appointments Commission has evolved over time. It was set up to ensure the independence of the judiciary, by requiring vacancies to be advertised and published, with the criteria for appointment and so on.

The changes proposed in the amendments are ones of principle that are rooted in the separation of powers and in line with the view of Lords Constitution Committee on judicial appointments. That Committee has affirmed that judicial independence is a basic constitutional principle, and it found wide agreement among those that gave evidence to it that the appointments process must be designed in such a way as to reinforce judicial independence and that judges should not be appointed through a political process.

The amendments are fundamental to the how the judicial commissioners are to be appointed. If there is to be public confidence in the double lock, judicial commissioners should be appointed independently, in accordance with the understanding and arrangements under our unwritten constitution.

[Joanna Cherry]

I support the amendments.

--- Later in debate ---

The amendments would remove the Prime Minister’s involvement in the appointment process and substitute it with a process by which the Lord Chancellor makes the appointments, following recommendations by the Judicial Appointments Commission. There are several problems with that. First, It would involve a different member of the Executive, and to involve the Lord Chancellor and not the Prime Minister raises questions of hierarchy—I put it no more strongly than that, but that is certainly of questionable merit. More importantly, I remind the Committee that in order for an individual to qualify as a judicial commissioner, they will have to be, or have been, a High Court judge, so they will have gone through the Judicial Appointments Commission process. I am not sure that they need to be put through it again. Hon. Members will remember that during the evidence session on 24 March I asked Lord Judge about that point specifically, because I was mindful that it was a matter of debate and mindful of what the Joint Committee had said about it. Lord Judge was very clear about.

[Keir Starmer]

I take the point that there is no point in people who have gone through the Judicial Appointments Commission process once going through it again. In fairness, we have put forward several options for the appointment process and, to be clear, I prefer the one in which, having consulted the Judicial Appointments Commission, the Lord Chief Justice, rather than the Lord Chancellor, makes appointments.

[Mr Hayes]

That is helpful, because the hon. and learned Gentleman has qualified the point that I was going to come on to make. The amendments could take the Lord Chief Justice out of the process altogether, and I am sure that the hon. and learned Gentleman would not want that—indeed, he has confirmed as much. However, there is also a point to be made about the practicalities and effectiveness of the system, which Lord Judge commented on when I questioned him on 24 March. I asked,

“in terms of the appointment of the judicial commissioners, would the Judicial Appointments Commission be a better place to appoint them, or do you rather like the model we have come up with?”

He said that

“I much prefer the model you have come up with”,

and finished by saying:

“There is no point whatever in involving the Judicial Appointments Commission, ignoring the fact that it has got far too much to do anyway and not enough people to do the work.”––[Official Report, Investigatory Powers Public Bill Committee, 24 March 2016; c. 73, Q237.]

I will not comment on the arrangements or resources of that body, but on a different occasion, when speaking in particular about the Prime Minister’s role in the proposals, Lord Judge described that as a “perfectly sensible system.”

It is therefore clear that there is a view that the arrangements being put in place are a reasonable balance between the Executive and the judiciary, and that changing them would not necessarily lead to greater effectiveness or practicality. The people being appointed will already been through Judicial Appointments Commission process, as the hon. and learned Gentleman generously said. It is also important that we are clear about lines of accountability and the character of independence. To an extent, that reflects the broader debate that my hon. and learned Friend the Solicitor General stimulated. It is important that there is separation between the roles of the people involved to avoid any sense of patronage, and that the Prime Minister continues to play a role, to affirm the significance of the Executive’s engagement in everything that we are discussing in the Bill.

That is a much broader point. Although I do not want to go back into all of this, Committee members will be aware that the double lock that we have created is itself a compromise. On one hand, there is the position adopted by those who are sceptical about judicial involvement in the business of issuing warrants—the former Home Secretary Lord Reid, for example, and a number of Members of this House, including some from my own party. On the other, there are the recommendations of David Anderson, who is clear that in order to add more validation to the process and insulate it from challenge, it is important to create a role for the judiciary. Given that balance, which is a pretty finely tuned one, I am reluctant to take the Prime Minister out of the business of appointments.

--- Later in debate ---

[Mr Hayes]

The hon. and learned Lady ascribes to me a lack of willingness to hear the argument, which I have made clear is not a feature of my approach to the provisions, and a certain stubbornness. Far be it from anyone to accuse me of that. I am not insensitive to that argument, as I have emphasised.

[Keir Starmer]

rose—

[Mr Hayes]

I will give way to the hon. and learned Gentleman in a second, but I draw attention again to the Joint Committee’s view on the matter, because he quoted it. I think that we are reaching a common view on this; we are certainly journeying towards accord. The Joint Committee said:

“We do not think that appointment by the Prime Minister would in reality have any impact on the independence of the Investigatory Powers Commissioner and Judicial Commissioners. In modern times, our senior judges have had an unimpeachable record of independence from the executive and we believe any senior judge appointed to these roles would make his or her decisions unaffected by the manner of appointment.”

In the witness sessions, former Home Secretaries made it clear that in their direct experience of similar matters, they had seen no sign of the judiciary being intimidated to the point of subservience when faced with the views of the Executive.

There is an argument for fine-tuning, and that is almost where the hon. and learned Member for Edinburgh South West is heading. There are a range of amendments in this group, and in a sense some are more radical than others, as the hon. and learned Member for Holborn and St Pancras has acknowledged. He and the hon. and learned Lady have placed some emphasis on, if I may put it this way, one or two of the more modest changes that have been suggested, and that is not falling on deaf ears on the Government Benches. However, I resist the fundamentalist view—not represented in this case, I think—that somehow the Prime Minister’s involvement is undesirable because it compromises judicial independence.

--- Later in debate ---

[Keir Starmer]

The Solicitor General actually made a powerful case in favour of the amendments with his intervention, and I am reflecting on that. This is about choosing from a pool of judges who have all the necessary characteristics and competencies and deciding which of them will oversee the Secretary of State. That is a very powerful argument for saying that it should not be the Prime Minister for that deployment. I suppose what I am saying is this: what, over and above the other qualities that they have already proven, is needed in this case? There is the expertise; there is the knowledge of the area. Those are all matters that the Judicial Appointments Commission or the Lord Chief Justice would have strong views on, and probably better views than the Prime Minister, because they are closer to the judges on a day-to-day basis. What is special about this? It is a decision about which of these high-quality judges, with all the competencies, will oversee the Secretary of State. That is why the decision should not be with the Prime Minister.

[Mr Hayes]

I understand the point. The hon. and learned Gentleman will know that the Lord Chief Justice cannot appoint, because of creating what I described as patronage, but the Solicitor General’s point is that it is important that he can be involved, looking at deployment, for the reasons that we have both given.

In truth—I think it is fair to say this—the exact details of the appointment process, which the hon. and learned Gentleman seeks to explore further, are still under consideration. It is very important that all stakeholders are involved in designing an appropriate process. I am not sure that we would want to detail that in a Bill, as the hon. and learned Gentleman will understand, because this is a matter of judicial operational decisions as much as anything else.

I think we are getting to the place—perhaps in a slightly meandering way, but it is fairly late in our consideration of the Bill and a little opportunity to meander is always welcome, or perhaps not, as I can tell from your stern glance, Mr Owen—where we all agree that a balance needs to be struck between Executive involvement and judicial involvement. I think we are now getting to a place, notwithstanding that the amendments do not actually say this in the way they are grouped, where we agree that the Prime Minister needs to be involved to cement or secure that relationship between the Executive and the judiciary, and we are coming to a synthesis about the respective roles of some of the players.

At this juncture, having meandered, I can tell that you want me to draw my remarks to a swift conclusion, Mr Owen.

--- Later in debate ---

[Mr Hayes]

My hon. and learned Friend makes a very good point and, at an earlier stage of consideration of the Bill, that issue was raised. Will there be enough of these people? Will they want to do the job? This is an important new responsibility. It can hardly be argued, as some outside this place and perhaps even some in this place have tried to do, that the Home Secretary cannot cope with the numbers of warrants, and then simultaneously say that these people will rush forward to consider these matters in the heat of the moment and the dead of night. My hon. and learned Friend is right to say that there is an issue about people being willing to play this part in the double lock, and I would not want in any way to be complacent about that. It is important that the system is sufficiently streamlined, but rigorous, to ensure that people can practically do what we ask of them—she is right to make that point.

The difference between us now seems to be probably a slightly more refined version of what the amendments suggest. The difference now boils down to when and how the Prime Minister is involved, and on what basis he is involved in respect to the advice that he is given. We have already amended the Bill to make it clear that the Lord Chief Justice of England and Wales, the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland will be consulted, as the hon. and learned Member for Edinburgh South West said. Therefore, there has been some movement in the direction of those who felt that the measure needed to be more balanced; but, the hon. and learned Lady and, I think, the hon. and learned Member for Holborn and St Pancras are now saying that we need to recalibrate it one more time. We will not accept the amendments at this juncture, but I hope that both the content and the tone of what I have said will have suggested to all concerned that we are not unresponsive to these matters of detail and no doubt there will be further opportunity to discuss them.

[Keir Starmer]

I think this has been an occasion on which there has been a willingness on both sides to adapt, or look again at, their positions. Having listened to the debate, I think there is a powerful argument for saying that the Judicial Appointments Commission and its full process should not apply. One reason is that a judge has been through it and there is no need to retest their competencies. These are going to be very senior members of the judiciary and, almost certainly, from the smaller group within that who have experience handling the sort of material they need to handle to carry out the function of the judicial commissioner. That is going to be a small group of judges, and probably those who have sat on the Special Immigration Appeals Commission and dealt with other similar types of procedures. This is a question about which of those judges, who have all those competencies and experience, should oversee some of the functions of the Secretary of State. It is troubling, from an appearance point of view if nothing else, if the Prime Minister acts by consulting only the Lord Chief Justice.

[Mr Hayes]

Will the hon. and learned Gentleman give way?

[Keir Starmer]

In a moment I will, but I shall just finish my point. I know the Lord Chief Justice and I can imagine how that consultation would go. He would make a very powerful case and would not easily be dissuaded from his candidate.

I was going to press the amendment, but I am now not going to because of our discussion. On reflection, I wonder whether a possible approach would be for the Prime Minister to make an appointment only following a recommendation by those listed under subsection (3)(a) to (e). That would mean that the Lord Chief Justice would recommend the judge that they consider to have the skills and experience to do the particular job. The Lord Chief Justice would know about that and, with respect, the Prime Minister would not know about it in the same detail. The Prime Minister would, therefore, not be able to make an appointment that had not been recommended by the Lord Chief Justice and step outside that, but on the other hand, the Prime Minister would not be forced to make an appointment. That is because it is a recommendation, not a requirement, and so in a particularly contentious case the Prime Minister may say no.

There is an issue of appearance. These judges will have made decisions at the highest level, both for and against the Government. I can see how there would then be the temptation for some to look at the track record of a particular judge and say, “I can see why it is them.” Doing things in this way—I readily accept that this suggestion is not one of the amendments—would mean that the Lord Chief Justice had a more powerful role. In the end, it would be a recommendation role and there would be no appointment without a recommendation from the Lord Chief Justice, but they would not mandate the decision maker, which would remain the Prime Minister.

I simply put that idea forward. It is not one of the amendments. I will not press the amendments because at this stage further consideration probably needs to be given to exactly how the process will operate, if it is to be changed at all. I will now give way and I am sorry for not having done so sooner.

[Mr Hayes]

The difference between us is becoming even narrower. It seems that we are speaking about what the hon. and learned Gentleman has described as appearance. In saying that, I do not want to minimise the importance of this issue, but he will know that Lord Judge, when challenged on the issue of compromising independence, was clear. He said:

“There is no danger whatever.”––[Official Report, Investigatory Powers Public Bill Committee, 24 March 2016; c. 74, Q236.]

The reality is that independence would not be compromised, but I understand the hon. and learned Gentleman’s point on how these things look, and I will consider that in the spirit he suggested it.

[Keir Starmer]

I am grateful to the Minister. In the circumstances, I will not press the amendments. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 194 ordered to stand part of the Bill.

Clause 195

Terms and conditions of appointment

[Joanna Cherry]

I beg to move amendment 745, in clause 195, page 149, line 34, leave out “three” and insert “six”.

--- Later in debate ---

[Mr Hayes]

Disraeli said that a precedent embalms a principle, and the amendment is certainly not unprecedented, since we are once again considering the issue of economic wellbeing, as we have done with some frequency. Familiarity is almost always desirable, but I am not sure that the same can be said of repetition, which can often lead to tedium, so I will not repeat the argument about that. Let me therefore deal with the other amendments.

Amendment 748 has a probably unintended consequence. At the moment, judicial commissioners must—I use that word advisedly—not act in a way that they consider prejudicial to the public interest. The amendment, perversely, reduces that, so that they should have “due regard” to the public interest. It is a weakening of the public interest. I am not sure that that was the intention, but it is certainly the consequence of the amendment, which can be dismissed accordingly.

That leaves me with the point that the hon. and learned Lady made about privacy and the integrity of personal data. Proust said—he was speaking of prejudices, but this could be applied here—that at their “moment of novelty…fashion” lends things a “fragile grace.” On first acquaintance the amendment has such grace, but on closer examination the fragility becomes evident, because this is not by any means the best place in the Bill to advance that defence of privacy. A better argument, championed by the hon. and learned Member for Holborn and St Pancras, but supported by the hon. and learned Lady, would be to consider privacy at the early part of the Bill, which might then have ramifications for the whole of the rest of the Bill if an appropriate clause were constructed.

I have argued that privacy runs through the Bill and that it is an intrinsic part of the connection—the harmonious union that we seek to create in this legislation—between defence of personal interest and the capabilities of those missioned to keep us safe. The hon. and learned Gentleman put the case, right at the outset, that there was an argument for something more fundamental, which explained that relationship more explicitly through some clause. I put it to the hon. and learned Lady that that would be a much better place.

[Keir Starmer]

rose—

[Mr Hayes]

I will give way to the hon. and learned Gentleman, because I have cited him and courtesy obliges me to give way.

[Keir Starmer]

I am grateful to the Minister for giving way. I remind the Committee that the way I saw it was that there should be some overarching clause that would apply throughout the Bill, and thus to this clause and all others.

[Mr Hayes]

That is exactly the point I was making. Again, I have no doubts about the hon. and learned Lady’s noble intentions, but I do not think that this is a good place to do what she seeks to do.

--- Later in debate ---

[Mr Hayes]

I may have been judging the hon. Member for Hove harshly. If the Solicitor General is right that that is the misapprehension, I understand why the hon. Gentleman is making the case he is making. It is essential that we clearly set out the expectations for the exercise of the oversight function, as the Bill does.

Returning to the issue of common sense and what is self-evident, I say to the hon. Gentleman for at least the third time, and possibly the fourth, that there is always debate about how much is on the face of a Bill and how much is reserved either for the common sense of those who do what the Bill asks of them or for the supporting documentation, guidance and so on. We have had that debate a number of times. It is often important that what might appear as “self-evident” or common sense is placed on the face of the Bill, as the hon. and learned Member for Holborn and St Pancras has repeatedly asked me to do.

[Keir Starmer]

I simply remind the Committee that what my hon. Friend the Member for Hove said was, “This is what Sir Stanley said, would you care to comment on it?” In fairness, there is no criticism of the Minister in any of this. My hon. Friend is simply saying, “This is the witness’s evidence. What do you make of it?”

[Mr Hayes]

I was, by proxy, making that clear, and I will leave it at that.