Investigatory Powers Bill

Lord Strasburger Excerpts

Monday 11th July 2016 Lords Chamber

[Lord Strasburger (LD)]

My Lords, I should mention that this subject was covered extensively in the Joint Committee on the Bill. It seems that the noble and learned Lord is suggesting that in order to be able to monitor a gang when we do not know if it is made up of three or four people, the language of the clause should be this open. Perhaps I may quote from some of the evidence that was given to the committee. The clause fails to,

“exclude the possibility that everyone who belongs to a certain trade union, political party or book club; visits a certain shop; attends (or has friends or family members who attend) a certain house of worship; subscribes to a certain publication; participates in a lawful and peaceful demonstration; celebrates or may celebrate a certain religious or national holiday”,

and so on and so forth. All those activities seem, perhaps as an unintended consequence, to be swept up by this provision. Recommendation 38 made by the committee states that,

“the language of the Bill be amended so that targeted interception and targeted equipment interference warrants cannot be used as a way to issue thematic warrants concerning a very large number of people”.

[Lord Keen of Elie]

A thematic targeted warrant will be granted only in circumstances where the Secretary of State is satisfied that it is necessary and proportionate. None of the examples cited by the noble Lord comes within a hundred miles of that.

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[Lord Pannick (CB)]

I support what the noble Lord, Lord Paddick, has said, and I too would be grateful for an explanation of why it is necessary or appropriate for the Secretary of State to be involved in the issuing of warrants in relation to non-contentious matters. My understanding—and I should be grateful if the Minister can deal with this—is that the Bill will impose those responsibilities on the Secretary of State in relation to basic policing functions, even though, under existing law, the Secretary of State has no role in the issuing of warrants in such circumstances.

[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.

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The noble Lord, Lord Strasburger, asked whether a Secretary of State has ever been held accountable for a warrant. Protecting the UK and its people is the first duty of government. Secretaries of State are accountable to Parliament for the actions of the intelligence agencies and law enforcement bodies that they oversee, as I said. The Intelligence and Security Committee of Parliament plays a crucial role in this. Its review of the tragic killing of Lee Rigby is an excellent example of its in-depth investigation of what occurred, and whether it was preventable. That investigation considered the authorisation of sensitive capabilities and, while some of its scrutiny was inevitably held behind closed doors, Ministers were certainly held to account for their decisions. So the approach taken in the Bill offers a balance between the expertise and accountability of a Secretary of State and the independent scrutiny of a judicial commissioner. A judicial commissioner will need to be fully satisfied that the Secretary of State’s decision to authorise a warrant was correct; otherwise, that warrant cannot be issued. This double-lock system is in our view far preferable to a single authorisation system and will give the UK world-class safeguards. I hope that that is a helpful explanation and will encourage the noble Lord to withdraw his amendment.

[Lord Strasburger]

I think the Minister will have to concede that the notion of democratic accountability is wafer thin because a Minister cannot come to Parliament to explain or defend what is being asked about—any warrant. I would like the Minister to explain to us why the four other partners in the “Five Eyes” network—that is, Australia, Canada, the US and New Zealand—find no need for this democratic accountability.

[Earl Howe]

Will the noble Lord be kind enough to repeat the last part of his question?

[Lord Strasburger]

The “Five Eyes” partnership of Australia, New Zealand, Canada, America and the UK has been in existence since the Second World War. The UK is the only one out of those five that feels the need for Secretaries of State or politicians in general to be involved in authorising warrants. I was wondering why the UK has to stand out alone in that way.

[Earl Howe]

It is really quite difficult for me to answer the noble Lord’s question on the “Five Eyes”: it has to be a question for the other members of that group. The approach we have taken is consonant with our general wish, as a country, to hold Ministers to account for important decisions taken about national security and privacy, rather than to consign those decisions to the court. Nevertheless, we believe there is a role for a judicial commissioner to approve what Ministers do. That double lock is the formula which most people in the other place were comfortable with. That is probably all I can say on that score. I hope that the noble Lord will reflect on the case of Lee Rigby, which is a good example of how a Minister was directly accountable to Parliament, albeit in secret session but nevertheless fully accountable to a committee of Parliament. I am sure there are other examples where that has occurred.