Investigatory Powers Bill

Lord Rosser Excerpts

Monday 5th September 2016 Lords Chamber

[Lord Murphy of Torfaen (Lab)]

My Lords, I also support the two amendments in this group, the first from the Government and the second on behalf of the Intelligence and Security Committee. The amendments are very sensible. It does not seem to me at all right that the IPC should not say why an investigation should not be pursued.

Let me say very briefly how important it is that the role of the Intelligence and Security Committee is acknowledged in this House as part of this Bill. Indeed, scattered throughout the Bill and the Joint Committee’s report on the Bill are references to the Intelligence and Security Committee. I had the great privilege of chairing that committee for about two years and I believe that, since then, there has been enormous change in its powers and its membership—we have two distinguished members here today. That is so important to give confidence, not just to Members of this House and the House of Commons but to the public in general, that whatever happens—and which cannot be revealed, inevitably, because of the nature of this business—there is a committee of Parliament charged, as it is, with a highly distinguished membership, a very eminent chair and an expert staff. It is so important that that is recognised and that the Government support the amendment from the ISC.

[Lord Rosser (Lab)]

As has been said, government Amendment 193 places a statutory duty on the Investigatory Powers Commissioner to inform the Intelligence and Security Committee of Parliament of his or her decision as to whether to carry out an investigation, inspection or audit in cases where the Intelligence and Security Committee has referred a matter to the Investigatory Powers Commissioner with a view to the commissioner carrying out such an investigation, inspection or audit. Amendment 194, in the name of the noble Lord, Lord Janvrin, is very similar to the government amendment, except it also requires the Investigatory Powers Commissioner to provide the Intelligence and Security Committee of Parliament with the outcome of any investigation, inspection or audit carried out under the terms of the government amendment. I do not know whether the Government are going to accept Amendment 194—we shall find out shortly—or, alternatively, give reasons why it is not acceptable. They may simply say that this will happen anyway and that the amendment is therefore unnecessary.

However, I have one other, I think very minor, point to raise. I accept before I start that it may display a degree of confusion about another part of the Bill. Clause 206(1) enables the Prime Minister to give direction to the Investigatory Powers Commissioner, provided that it,

“does not apply in relation to anything which is required to be kept under review by the Investigatory Powers Commissioner under section 205”.

Clause 206(3) states that:

“The Prime Minister may give a direction under this section at the request of the Investigatory Powers Commissioner or the Intelligence and Security Committee of Parliament”.

Where the direction under subsection (3) has been given by the Prime Minister to the Investigatory Powers Commissioner at the request of the Intelligence and Security Committee of Parliament, will the terms of government Amendment 193 and Amendment 194, if accepted, apply in respect of the commissioner informing the Intelligence and Security Committee of Parliament of his or her decision and the outcome of any investigation, inspection or audit? If not, why not?

[Earl Howe]

My Lords, let me start my response to the noble Lord, Lord Janvrin, by endorsing the point ably made by the noble Lord, Lord Murphy, and paying tribute to the work that the ISC does. Its members have proven themselves adept at holding the security and intelligence agencies to account and they are more than capable, I believe, of investigating any issue that falls within their remit.

It is conceivable, however, that the ISC may uncover an issue that merits further investigation but which is outside its remit to investigate. In those instances, it is right that the committee can refer the issue to the Investigatory Powers Commissioner, who can then decide whether to investigate further. It is also right that, having referred the issue, the ISC is then informed about the commissioner’s decision on whether to take further action. That is what the Government’s amendment seeks to achieve and I am glad that it has found favour with the committee.

The amendment put forward by the noble Lord, Lord Janvrin, would go further than that and mean that the commissioner must then report to the ISC the result of the investigation. I find that difficult to accept for two reasons. First, the IPC should report solely to the Prime Minister, who is ultimately responsible for our national security and therefore best placed to take any national security decisions that arise as a result of the reports. Secondly, if an issue has been referred to the IPC because it is outside the remit of the ISC, it does not necessarily follow that the ISC should see the result of that investigation.

It is worth focusing for a second on how things work in the real world. I am sure that, in practice, the IPC and the ISC will strike up a sensible and solid working relationship and keep each other informed of their work. But we do not have to provide for that in statute. On that basis, and in the light of the government amendment, which achieves almost all of what is intended by the ISC, I hope that the noble Lord, Lord Janvrin, will feel able not to press the amendment.

Let me address the point raised by the noble Lord, Lord Rosser, which is not a trivial point. Prime ministerial direction would come into play in a scenario in which, upon request of the ISC, the IPC declined to investigate further in the area suggested. In that situation, the ISC could progress the matter by asking the Prime Minister to direct the commissioner to undertake an investigation. That is provided for by Clause 206(3).

I do not think it is appropriate for this Bill to provide a mechanism whereby the IPC has to report in a certain fashion. We have to be a little careful here to ensure that the IPC is not seen as an arm of the Intelligence and Security Committee—it is not. However, there is a memorandum of understanding between the Intelligence and Security Committee and the Prime Minister. I understand that that memorandum of understanding will come up for review in the reasonably near future. I suggest that, at that time, if it is thought appropriate, the MoU could provide a vehicle to offer some further reassurance in the area that the noble Lord, Lord Janvrin, is seeking.

I recognise the issue that has been raised by the noble Lord, Lord Janvrin. As I said, I think that in the real world it will be a non-issue. However, if there is concern in this area, perhaps I can send a signal to those involved that, when the MoU is further considered, this issue will also be factored in.

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Moved by

[Lord Rosser]

194CA: Clause 214, page 165, line 33, leave out “modify the” and insert “extend and augment the oversight”

[Lord Rosser]

Clause 214(1) provides that the Secretary of State may by regulations modify the functions of the Investigatory Powers Commissioner or any other judicial commissioner, subject to the constraint in subsection (2). On the face of it, that is a fairly wide-ranging power and it would be helpful if the Minister could say what functions of the IPC the Government think that they might need to modify by regulations, and whether that would include a diminution in the role and responsibilities of the Investigatory Powers Commissioner or any other judicial commissioner.

One could surely argue that the functions of the commissioner or of any other judicial commissioner should be set out in primary legislation and modified only through primary legislation, particularly where it reduces their role and responsibilities. What modifications of the functions of the Investigatory Powers Commissioner or of any other judicial commissioner, subject to the provision of Clause 214(2), would the Government think it inappropriate to deal with by regulations under Clause 214?

Our amendments seek to remove the power to modify by regulations by amending Clause 214(1) to say that the Secretary of State can by regulations only,

“extend and augment the oversight”,

functions of the Investigatory Powers Commissioner or any other judicial commissioner, and only in order that those functions should be able to keep up with technological or other developments. This would also appear to have some relevance to the recommendation in the Anderson Report of the Bulk Powers Review that a technology advisory panel should be established to advise the Secretary of State and the Investigatory Powers Commissioner.

We also have an issue in this group in relation to Clause 242 standing part of the Bill. The reason is that in its report published on 8 July of this year, the Delegated Powers and Regulatory Reform Committee raised a number of concerns about the powers conferred on the Secretary of State under Clause 242 to make such consequential provision as she considers appropriate by regulations, with this power being able to be exercised by amending or otherwise modifying the provisions of primary or subordinate legislation, including future enactments. The Delegated Powers and Regulatory Reform Committee also considered the powers conferred by paragraph 33 of Schedule 8 to be inappropriate to the extent that they permit amendment by regulations of future enactments passed or made after the current Session, as well as amendments to Schedule 8 itself.

There are other amendments in this group relating to the concerns and views expressed by the DPRR committee on the Bill, of which I am sure the Government are aware. I will therefore not go into further detail on this score but instead simply ask the Minister to say what action the Government intend to take in the light of that committee’s report.

[Baroness Hamwee]

My Lords, my noble friend Lord Paddick and I have Amendments 194CC to 194CE, 238A and 238B, 240A and 240B, and 242A in this group. First, of course, there are the amendments of the noble Lord, Lord Rosser. The first of these is very similar to Amendment 194C, which we debated before the Recess, and which would have replaced the word “modify” with “extend or augment”. The amendment of the noble Lord, Lord Rosser, would do the same, except that it says,

“extend and augment the oversight”.

The Minister’s reply on the third day of Committee referred the Committee to the affirmative regulations which would be required and to the scrutiny involved. I am often not convinced by an argument that secondary legislation provides adequate scrutiny regarding the protection that might be given. I will probably never be wholly convinced about this as a mechanism until there is a mechanism to amend secondary legislation. I dare say that the response will be the same; if it is not, that will be interesting in itself.

On Amendment 194CB, I do not think that I would want to limit the modification which is the subject of this to keeping up with technical developments. There could be some other reasons if it is found that the powers are not quite spot on. But this is certainly an area of concern.

Amendments 194CC to 194CE deal with Schedule 7, which relates to codes of practice. I have already expressed some reservations about them. The first of the amendments would add to the procedural requirements that the Secretary of State must consult on a draft code as well as consider representations on it. The Minister may say that the Secretary of State will have to consult because she cannot consider representations without consulting. I am not quite sure whether that would be a logical or complete answer, but assuming that the Secretary of State will be expected to consult, we should say so.

Two other amendments concern the terms “taking into account” and “having regard to”. I realise that we discussed the hierarchy between these terms—if there is any—on a previous day, so I apologise to the Committee. I think that the answer was that it would be inelegant not to use different terms in the clause, which would otherwise suffer from very clunky wording.

The noble Lord, Lord Rosser, referred to our other amendments, which indeed come from the report of the Delegated Powers and Regulatory Reform Committee. I am extremely grateful to the Public Bill Office and in particular to Nicole Mason, with whom I had some quite long discussions and email exchanges as I tried to get to drafting that would pick up the points made by that committee. This is what these amendments seek to do. The noble Lord referred to the concern about a power to amend future enactments—not only those later in the same Session as the Bill, which would be understandable, but whenever they are made.

The committee also quoted a paragraph from the memorandum on delegated powers, which advised the House that,

“this potentially wide power is constrained by the requirement”,

on the Secretary of State to consider,

“the provision to be appropriate in consequence of this Act. Accordingly, the power is effectively time limited”.

The committee said that it found this paragraph difficult to understand—and so did I. It also said that it is not convinced that it is necessarily right. Its recommendation was that,

“the powers conferred by clause 242(2) and (3) are inappropriate to the extent that they permit amendment of future enactments passed or made after the current Session”.

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[Baroness Hamwee]

My Lords, I apologise for the rather cheap gibe about the split infinitive. I recognise that I am old-fashioned, and styles have moved on. It would obviously be inappropriate to pursue the points made by the Delegated Powers and Regulatory Reform Committee at this point, given that the Minister has written to it, and we will wait to see if anything more happens on that. However, I will just say, on the question of consultation, that the Government are often very good at being proactive in consulting and at contacting organisations which they know have an interest. That is something that should be encouraged. To my mind, consultation which simply involves publication on a website—or perhaps in common parlance, “slipping something out”—the day before a recess and waiting to see whether there are any comments is not good practice. That was why I was concerned to spell this out. I am not of course suggesting that anyone on the Front Bench at the moment would indulge in such a practice, but it has been known to happen. This is not an unnecessary point, but I will not pursue it this evening.

[Lord Rosser]

I thank the Minister for his response, although clearly the answer that he has given on behalf of the Government is not the one that we might have been hoping for in relation to the Delegated Powers and Regulatory Reform Committee’s report and the concerns and views it has expressed. However, rather than making any more specific statements than that at this stage, I simply confine my observations to saying that I will wait and read the letter that I understand the noble Earl said was sent to the noble Baroness, Lady Fookes, which is presumably responding to the issues that have been raised. I will take the opportunity to read that letter and then decide whether to pursue the matter further or not at a later stage. I beg leave to withdraw the amendment.

Amendment 194CA withdrawn.