Investigatory Powers Bill

Lord Beith Excerpts

Monday 11th July 2016 Lords Chamber

[Lord Strasburger]

My Lords, I spent a lot of time sitting on the Joint Committee, and since then, searching in vain for a cogent reason why the Secretary of State needs to sign off warrants that have no national security or diplomatic import. Why should the Minister spend her valuable time examining and authorising warrants about everyday criminals? We are told that two-thirds or three-quarters—I do not know which; I have heard both figures—of warrants have nothing to do with national security or diplomacy.

The Secretary of State has no role in authorising property search warrants, which arguably are more intrusive, and involve invasion of a person’s home and discovery of information about a far wider range of subjects than a person’s communications. The only reason ever offered is that the Secretary of State is subject to scrutiny by Parliament, whereas a judicial commissioner is not.

When they gave evidence to the Joint Committee I asked two former Ministers who were responsible for authorising warrants how many times they had been held to account by Parliament. Both the noble Lord, Lord Blunkett, former Home Secretary, and Owen Paterson, former Northern Ireland Secretary, said that it had never happened. That was just as well because it is a criminal offence under RIPA for the existence or details of a warrant to be publicly disclosed. Clause 54 of the Bill continues that ban, with a penalty of up to five years in prison. Therefore, the whole notion of parliamentary accountability for Ministers who authorise warrants is a complete myth. It has never happened and the Bill prohibits it.

I expect that the Government will refer to the potential to be held to account by the ISC, but that does not fit the Bill and is not visible to the public. As far as I know—and as far as the noble Lord, Lord Blunkett, knew when he gave evidence—there are no examples of the ISC holding Ministers to account. I should be interested if the Minister can give some examples of when that has happened. I, too, wait with interest to hear the Government’s response to the amendment.

[Lord Beith (LD)]

My Lords, the Secretary of State’s involvement in law enforcement warrants is a historical hangover from when this was the only kind of control or restraint on police applications that existed prior to this legislation. Perhaps it shows a lack of rethinking the nature of judicial authorisation, such as this Bill provides for, that her involvement—it may well be “him” in the future—should have survived when it does not seem either to have practical purpose or to add significantly to the protections that the legislation will afford against misuse or excessive use of the power.

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

My Lords, as the noble Lord, Lord Paddick, explained, these amendments seek to place the sole decision on whether to authorise a warrant application with a judicial commissioner. In the Government’s firm view, this would be a mistake. The noble Lord asked why there is a need for the Secretary of State’s involvement at all. Having a judicial commissioner be solely responsible for authorising warrants would remove all democratic accountability for that decision and would effectively remove parliamentary scrutiny from the process. In the scenario that a warrant was incorrectly either refused or approved, then the ability of Parliament to hold an individual to account for that particular decision would be greatly diminished.