Committee (3rd Day) (Continued)
Clause 126 agreed.
Clause 203: Investigatory Powers Commissioner and other Judicial Commissioners
176A: Clause 203, page 155, line 16, at end insert—
“( ) There shall be a body corporate known as the Investigatory Powers Commission, which shall have such powers and duties as are specified in this Act.”
This amendment would replace a proposal to create an Investigatory Powers Commissioner with provisions to create a new investigatory powers commission. The investigatory powers commission would be a separate oversight body, as recommended by the Independent Reviewer of Terrorism Legislation, David Anderson QC, in his report A Question of Trust. The commission would have oversight functions that currently reside with judicial commissioners who authorise warrants.
The IP Bill proposes that the Investigatory Powers Commissioner will replace the Interception of Communications Commissioner’s Office, the Office of Surveillance Commissioners and the Intelligence Services Commissioner. That sort of reduction does sound sensible. Their roles would go to the new Investigatory Powers Commissioner and fellow judicial commissioners, who would therefore have dual responsibility for, first, reviewing surveillance warrants issued by the Secretary of State and law enforcement chiefs and, secondly, for post-facto oversight of the use of intrusive powers. Additionally, the investigatory powers commission would be required to keep under review any aspect of the functions of the agencies, as directed by the Prime Minister, and must make an annual report to her about the carrying out of the functions of the judicial commissioners.
The Home Office has so far refused to establish an independent investigatory powers commission as a statutory oversight body, in spite of recommendations based on extensive evidence. Instead, it has retained its own proposal for a team of judicial commissioners, appointed by the Prime Minister and funded by the Home Secretary, to both authorise and oversee the use of investigatory powers. This approach confuses and conflates the roles of authorisation and oversight. It is constitutionally inappropriate for those involved in decision-making to have responsibility for the oversight of those same decisions. Such conflation gives rise to a potential conflict of interest. I support the reduction of oversight to one consolidated body but urge the Government to make oversight more independent. I beg to move.
My Lords, my noble friend Lord Paddick and I have Amendments 194A, 194B and 194C to 194F in this group. Clause 213 deals with funding, the provision of staff, accommodation, equipment and facilities, and remuneration and allowances for the judicial commissioners. I read the “remuneration and allowances” as being personal to the judicial commissioners. Our amendments are all concerned with ensuring that the commissioners have the tools to do the job.
Amendment 194A would insert “support, assistance”. I do not think that I need to pray in aid the support and assistance only relatively recently acknowledged as being needed by the Independent Reviewer of Terrorism Legislation; of course, I had his situation a little in mind but it is not the only factor. I am not convinced that the term “facilities” extends, for instance, to legal or technical support. There is a reference to “staff” but that suggests permanent staff, not the ability to seek advice from people who are not on the payroll. I am sure that it is not intended that the commissioners should not be able to access such advice.
Amendment 194F deals with Clause 220, regarding the Technical Advisory Board. It would provide for the appointment of people whom the Investigatory Powers Commissioner considers should be appointed, as well as the Secretary of State. It is also intended to probe whether the board will be available to the Investigatory Powers Commissioner and the judicial commissioners.
Amendment 194E deals with the same clause, which says:
“There is to continue to be”,
a board. Our amendment provides that there “shall” be a board. We are perhaps not starting from here in the real world but, legislatively, we are. That there should “continue to be” a board—I know that RIPA provides for one—implies that something unstated is carried over to the new regime. If that is so, I would like to understand it.
Amendment 194B is still about support and would enable the Investigatory Powers Commissioner to share with Parliament representations about the adequacy of his or her support. This is about Parliament’s scrutiny role. If there are truly double locks, the IPC should be able to report on the issue and not be stifled by some Secretary of State in the future—I do not apply this to any previous or current Secretary of State. Clause 210 on the annual reporting provision does not, to my mind, cover the point—I think that the amendment of the noble Lord, Lord Rosser, makes a similar point.
Our other two amendments are about discrete points. Amendment 194C is to Clause 214, which would enable the Secretary of State to make regulations that “modify the functions” of the commissioners. We are concerned that this could be used to override or limit their functions. I can just about see an argument for extending functions through this mechanism but not for detracting from functions by means of secondary legislation. This amendment is to probe what is intended.
I may well be told that experience might demonstrate that changes are needed. While I can see that, there is always the issue of what is appropriate for secondary legislation and what really should go into primary. Also, if there is a concern to be able to respond fairly quickly to a need to modify, are we talking about modifying functions or modifying powers? Again, that should probably be by extension rather than reduction. The Constitution Committee made comments about this and, in the usual way that our committees report, said that the House may wish to consider the matter and ask the Government whether this is really appropriate.
Amendment 194D would provide for the rules under which the Investigatory Powers Tribunal operates to be made by the tribunal procedure committee rather than the Secretary of State, as is provided for now under Section 69 of RIPA. Again, the Constitution Committee raised this issue and, in its report on the Bill, said:
“The capacity of the Secretary of State to determine”,
the tribunal’s rules,
“could call into question the Tribunal’s actual and perceived independence. The introduction of a right of appeal would clearly elevate the IPT from a complaints body to an independent tribunal within the justice system”.
It then suggested that the House should consider the matter. The last subsection of my proposed new clause in Amendment 194D, which would omit Section 69(12) of RIPA, is consequential and refers to Scottish Ministers.
On Amendment 176A, we take very much the points made by the noble Baroness, Lady Jones, and no doubt expressed to us all very cogently by Liberty. There is clearly widespread concern about this issue and it is right that we should have an opportunity to bottom out here just why the Government are so focused on the structure that they propose in the Bill, rather than there being a new commission specifically tasked with oversight functions. I believe that my noble friend Lord Strasburger has some comments to make about this. He said at dinner that he would not do so but I think he has decided that he cannot resist. The noble Baroness is right to raise this point.
My Lords, my noble friend is quite right: I feel the need to intervene on Amendment 176A. There seems to be a strong consensus among the bodies that considered the Bill in its draft stages and beforehand that there should be a commission rather than commissioners. The Joint Committee made this very clear in its recommendation 114:
“It is unclear to us why the Home Office chose to create a group of Judicial Commissioners rather than creating an Independent Intelligence and Surveillance Commission as recommended by David Anderson QC, a recommendation endorsed by the … Interception of Communications Commissioner’s Office. The benefits of having a senior independent judicial figure in the Investigatory Powers Commissioner would not be lost by putting the IPC at the head of a Commission. The evidence we have heard is that the work of the oversight body will be significantly enhanced by the creation of a Commission with a clear legal mandate”.
The Interception of Communications Commissioner’s Office commented:
“The bulk of the oversight will actually be carried out by inspectors and staff within the Commission who need a clear legal mandate to require information from public authorities, to launch and undertake audits, inspections, inquiries, investigations and react in real time when noncompliance or contraventions of the legislation are discovered during an inspection. There are examples of oversight bodies created as separate ‘Commissions’, e.g. section 9 of the Police Reform Act 2002 created the Independent Police Complaints Commission as a body corporate. We believe this legal structure provides an appropriate model for the Investigatory Powers Commission, with statutory functions vested in the body corporate as well as the Judicial Commissioners”.
The Government have elected to ignore all those recommendations. The only reason I have heard to date is the estimated additional cost of £500,000 a year of a commission, as opposed to commissioners. I have heard no substantive arguments against the proposition, so I await the Minister’s response with interest.
We have one amendment in this group, Amendment 194BA, and I have added my name to Amendment 194D. Most of the arguments have already been made but Amendment 194BA addresses a point raised in the report of the Select Committee on the Constitution and concerns the funding of the judicial commissioners. In its report the Select Committee points out that the Joint Committee on the Draft Investigatory Powers Bill concluded that it was,
“inappropriate for the Home Secretary alone to determine the budget of the public body which is monitoring the exercise of her surveillance powers”,
that body being the Investigatory Powers Commissioner.
The Select Committee went on to suggest that one way to,
“mitigate the risk of executive interference in the functions of the Judicial Commissioners would be conferring on the Investigatory Powers Commissioner the right to make written representations to Parliament”.
That is what Amendment 194BA seeks to achieve: it would implement the recommendation of the Select Committee on the Constitution. I am obviously interested to hear what the Government’s reaction is to that recommendation and whether they intend to take it up or not.
The second amendment with which we are associated, which the noble Baroness, Lady Hamwee, has already spoken to, is Amendment 194D. Once again, that relates to a comment made in the Constitution Committee report, which says that the Investigatory Powers Tribunal has the function of deciding,
“complaints concerning unlawful intrusion upon privacy … by public bodies, including the security and intelligence agencies and the police … At present, there is no right of appeal against the IPT’s decisions. However, clause 208 of the Bill creates a right of appeal to the Court of Appeal. Following this change, it is clear that the IPT would no longer be merely a complaints body, but an independent tribunal and part of the justice system. This change leads to two major concerns. First, we note that at present the IPT’s rules are made by the Secretary of State, in contrast to the rules pertaining to the First-tier Tribunal and the Upper Tribunal, which are made by the independent statutory Tribunal Procedure Committee”.
The committee was concerned that the position of the Secretary of State in determining,
“the Investigatory Powers Tribunal’s rules could call into question the Tribunal’s actual and perceived independence”.
It goes on:
“In the light of that, the House may wish to consider whether the Tribunal Procedure Committee, rather than the Secretary of State, should make the IPT’s rules”.
This is what Amendment 194D seeks to address. Once again I would be interested to hear the Government’s response to the Constitution Committee’s report.
The Select Committee also makes further reference to the IPT’s rules, saying that under those rules,
“the Tribunal cannot disclose … any material supplied to it by the intelligence services or the police unless the relevant body consents”.
Since there is now an appeal to the Court of Appeal:
“The Court of Appeal would inherit this restriction on its ability to disclose material submitted to it. The House may wish to consider whether it would be appropriate for an independent court to be prevented from disclosing information if it considers it necessary in the interests of justice”.
There is no amendment tabled relating to that issue, but I invite the noble Earl to indicate the Government’s response to the view expressed by the Constitution Committee.
My Lords, Amendment 176A seeks to replace the statutory appointment of an Investigatory Powers Commissioner with the creation of an investigatory powers commission. This topic was discussed in detail, and voted on, in the other place, which agreed with the government position that establishing a commission was not necessary.
I am afraid I remain unconvinced of what practical good this amendment would do. The powers and duties on the proposed body would remain exactly the same as the responsibilities of a commissioner. The number of inspectors, technical experts and judicial commissioners employed by the organisation would remain exactly the same. In fact, as the noble Lord, Lord Strasburger, indicated, the only things that would increase would be the expense of the body to the taxpayer and the bureaucracy that it would be faced with. The body would need to be provided with a range of staff to perform corporate functions on its behalf, including its own IT people for when the printers break, its own procurement people to buy the stationery and so on.
No, I do not believe it does. A lot of these overheads, such as those relating to back-office functions, can be shared with other arms of the executive, so my advice is that these would be extra costs that would have to be paid for by the new body.
The new commission will also have to appoint a board and at least three non-executive directors. That would certainly add significantly to the expense of creating a new oversight body with, I contend, very little benefit in the quality of the oversight that it provides. Creating a commission would not serve to advance independence, which was one argument put forward by the noble Baroness. The current oversight bodies, the Intelligence Services Commissioner, the Interception of Communications Commissioner and the Chief Surveillance Commissioner, are provided for in statute in the same way as we propose to provide for the Investigatory Powers Commissioner. The model we propose will allow the oversight bodies to focus on their core tasks of inspections and investigations without tying them up in too much administration; that is a sensible approach. I hope that the noble Baroness will feel able to reflect on that between now and Report.
As for the comment that the model we propose does not respond to the recommendations about separating powers, it will be for the Investigatory Powers Commissioner to decide how to arrange and run their office. The commissioner will have responsibility for two distinct functions and will have sufficient staff to undertake them independently of each other. However, as David Anderson recognised, there are distinct advantages in having that relationship, even if it is an arm’s-length one, between the two functions. An example of where David Anderson felt that the relationship will be useful is when the judicial commissioners could specifically advise the inspectorate on matters to look out for on their inspections. The dialogue would be lost if the two functions were kept completely distinct.
Before the noble Earl moves on, 20 minutes ago I was not hugely enthusiastic about a single body; I have become a little more so as the debate has gone on. I have one question and another point. Have the current commissioners been consulted about the Bill’s proposals for the structure? What is their view about a single body as distinct from the parallel arrangements? Secondly, I absolutely understand that if you create a new body you create the need for some administrative—bureaucratic, if you like—arrangements, but for the argument to hinge too much on savings really worries me. As my noble friend says, surely, from paperclips onwards, the needs will be identical. If savings are expected from this, there must be concern that the functions will be affected.
I understand the noble Baroness’s strength of feeling on this. Part of the purpose of our debates in Committee is to enable all of us to reflect on the points that have been made between now and Report, and I will certainly go away and do that. The answer to her first question is yes, the current commissioners were consulted about bringing the functions together into a new commissioner, and they approve of creating that single function.
Amendment 194A would require the Secretary of State to provide the judicial commissioners with support and assistance. While I agree with the intention behind the amendment, it is unnecessary. In terms of support, Clause 213 already places a duty on the Secretary of State to provide the IPC with staff, accommodation, equipment and other facilities. As regards assistance, Clause 211 requires the Secretary of State to provide the IPC with any access and assistance as necessary to fulfil its functions. Amendments 194B and 194BA are more specifically about the funding and resources that the IPC receives from the Secretary of State.
I fully support the principle that the IPC should be both well resourced and well supported. The impact assessment the Government have published makes it clear that the predicted future funding of the IPC is £7.4 million per annum. That is an increase of 131%—well over double—when compared to the combined funding that the existing commissioners received before the Bill was introduced. I also appreciate that the needs of the commissioner may change over time. Therefore, Clause 210(2)(d) makes it clear that the annual report of the IPC must contain information about,
“funding, staffing and other resources”.
I am certain that the IPC would use this opportunity to alert the Prime Minister if it felt that it was under-resourced in any fashion. The Prime Minister must then lay this report before Parliament, so Parliament could then take up the cause of the IPC if we ever reached that state of affairs. Therefore, I do not believe that Amendments 194B and 194BA are necessary.
Amendments 194E and 194F propose changes to Clause 220 of the Bill. This clause provides for the continued existence of a technical advisory board, currently provided for in Section 13 of RIPA. It also provides for the make-up of the technical advisory board to be prescribed by the Secretary of State in regulations. Amendment 194E would make a minor change to this clause. From what the noble Baroness said, I do not think that the purpose of the amendment is to ensure that the membership of the existing board is replaced in its entirety—that we should scrap the existing board and start from scratch. If I am wrong about that, perhaps she could indicate as much, but I did not gather that from her comments. But it might be helpful for me to provide some additional information about the make-up of the current board.
Current board members were appointed from the very small pool of people who have knowledge of the cost and technical feasibility of developing the technical capabilities used to give effect to warrants. In line with RIPA and the provisions in this clause, there is a balance of representation from the telecommunications industry and from the agencies entitled to apply for warrants or authorisations under the Bill. The role of these experts is to advise the Secretary of State on cost and technical grounds if an interception notice given under RIPA is referred for review.
The Investigatory Powers Bill extends this important safeguard to data retention notices, national security notices and all technical capability notices. It is of course right that board members must be able to meet the requirements of this new role. So, in response to the recommendations of the House of Commons Science and Technology Committee on the draft Investigatory Powers Bill, the Government committed to audit the membership of the current board to identify any gaps in knowledge; those will be addressed as a priority through the recruitment of new members.
It may be helpful for me to make the Committee aware that the board’s independent chair may, if required, call on external expertise to assist the group in deciding reasonable costs and the technical feasibility of an obligation. Furthermore, regulations under Clause 220 may also provide for other persons to be appointed to the board as the Secretary of State considers appropriate. This ensures that the technical advisory board is sufficiently flexible to be able to seek particular expertise as required.
I note that the noble Baroness feels that the word “continue” is inappropriate in this context, but I argue the opposite. If the board exists at the moment, it is perhaps not the right thing implicitly to deny its existence by failing to include a word that acknowledges the fact. I hope that we are not dancing too much on the head of a pin there, and that she will not insist on the change that she has proposed.
Amendment 194F would provide that regulations could permit the Investigatory Powers Commissioner to appoint people to the technical advisory board. I do not consider that to be a necessary change. The purpose of the board is to advise the Secretary of State. I believe it should be for the Secretary of State to determine who is best placed to provide such advice and, as I have discussed, the chair may request the views of external experts should they deem it necessary to assist the board. For those reasons, I do not consider that it is necessary for the Investigatory Powers Commissioner to play a role in appointing members to the technical advisory board.
Amendment 194C relates to Clause 214. Clause 214 allows the Secretary of State to modify the functions of the Investigatory Powers Commissioner or other judicial commissioners. This will allow the functions of the judicial commissioners to be extended and changed to reflect any potential changes to the investigatory powers that the commissioners oversee. The judicial commissioners will oversee the use of a wide range of powers, including some in other enactments. Those powers may in due course be changed or updated, perhaps in the same way that this Bill is replacing parts of RIPA. In such a case, it is right that the functions of the judicial commissioners could be modified to reflect the changes. However, this may not mean an extension of the judicial commissioners’ oversight. The change may be entirely neutral. If this amendment were accepted, such a sensible change would not be possible.
I hope I can reassure the noble Baroness and the Committee that this power will not be used to reduce the oversight provided by the commissioners. The Government have been very clear on that point. It is also worth reminding ourselves that this power is subject to the affirmative procedure and that Parliament will have to approve any regulations made under this clause—so any attempt to diminish the commissioners’ oversight responsibilities would no doubt be scrutinised extremely carefully by Parliament.
The Committee will recall that the Delegated Powers and Regulatory Reform Committee expressed concern about the breadth of the order-making power and recommended that it should not extend to the IPC’s functions relating to the authorisation of warrants. The Government accepted this recommendation, and this clause has been amended accordingly.
Amendment 194D echoes a recommendation put forward by the Select Committee on the Constitution in its report on the Bill. The Government intend to provide a full response to the committee over the Summer Recess, and I therefore hope I may be excused if I do not address the merits of this amendment at present. However, I believe that, due to the unique functions of the Investigatory Powers Tribunal, some distinction can be drawn between its work and that of other tribunals. It is also worth reminding ourselves once again that any changes to the rules of the Investigatory Powers Tribunal, although made by the Secretary of State, have to be approved by both Houses of Parliament. In the light of my undertaking that the Government will be considering this more fully over the summer, I hope the noble Baroness will not press her amendment.
In response to the noble Lord, Lord Rosser, I hope he will allow me to respond in writing to his point on the Constitution Committee over the Summer Recess.
Will the noble Earl respond in writing on the point on the part of the report by the Select Committee on the Constitution which states:
“The House may wish to consider whether it would be appropriate for an independent court to be prevented from disclosing information if it considers it necessary in the interests of justice”?
Is that the issue on which the Government are going to respond?
There is one more point. In response to Amendment 194BA on funding, the noble Earl said that Clause 210 already requires the Investigatory Powers Commissioner to make an annual report to the Prime Minister. The Select Committee on the Constitution was of course aware of that at the time when it made its report, since it comments:
“The Prime Minister is required to publish the report but has a power to order redactions”.
I wonder why the Government do not therefore feel able to go down the road of the Select Committee recommendation over the Investigatory Powers Commissioner having the right to make written representations to Parliament, because they argue it on the grounds of the requirements of judicial independence and the need for public trust and confidence in the system. They say, in suggesting that the Investigatory Powers Commissioner might have the right to make written representations to Parliament, that that is,
“akin to the right conferred on the Lord Chief Justice by section 5 of the Constitutional Reform Act 2005”.
I am not sure why the Government are in effect rejecting the suggestion from the Select Committee on the Constitution, which knew at the time when it made that suggestion that Clause 210 required the commissioner to make that annual report but commented that although the Prime Minister is required to publish it, he has a power to order redactions. That is therefore slightly different from the Investigatory Powers Commissioner having the right to make written representations to Parliament directly, and it is a right that is akin only to that already conferred on the Lord Chief Justice under the Constitutional Reform Act 2005.
I understand the point made by the noble Lord, but I think it would be unimaginable that Parliament would not protest if there were a redaction in the report around the commissioner’s funding. Redactions, in any case, are made only on national security grounds, not on matters of this nature. Nevertheless, I will consider carefully over the summer period what the noble Lord has said, and no doubt we can return to these matters at a later stage.
My Lords, I have been listening to what the Minister has been saying. It is not too much of a stretch to imagine an argument that goes, “We can’t publish comments about the funding available because that would give clues about the severity of the security system situation or about the effort that is or is not going into dealing with it”, so it is a serious point. Regarding the phraseology in Clause 220, I was never much of a dancer so I hope the Minister will forgive me. I accept that it is a continuation of an existing board, but that is not how it appears in the Bill. I think it would benefit from being anchored by a reference to the existing board. I do not want to bring back such a minor point on Report, so I thought I would make it now and see if it gained any traction.
I thank the noble Baroness, Lady Hamwee, and the noble Lord, Lord Strasburger, for supporting the amendment. Needless to say, I am not convinced by the Minister’s response but I thank him for it.
I accept that the consolidation of all these offices—the IPC, the IOCCO, the OSC and the ISComm—is going to mean a magnificent saving, and I congratulate the Government on their thriftiness. However, my experience of consolidating power into one person is exemplified by the changes to police oversight—that is, the creation of police and crime commissioners. In my experience, the PCCs actually cost a lot more individually than the previous system did. I would argue that there is no guarantee that one body would not be a bargain just as much as a consolidated body could be.
I am also not convinced that there has been sufficient separation between authorisation and oversight, which is a very important issue that we have to keep in mind. However, bearing in mind that it has been hotter today in the UK than in Bangkok and Honolulu, and that at least this debate has kept us out of the heat, I thank everyone for this debate and beg leave to withdraw the amendment.
Amendment 176A withdrawn.
177: Clause 203, page 155, line 17, after “The” insert “Lord Chief Justice of England and Wales following consultation with the”
My Lords, my noble friend Lord Paddick and I also have Amendments 178, 180, 183 to 187, 187A, 188 and 189 in this group, which deals with the appointment of all commissioners.
I appreciate that the Government have moved very significantly by requiring the appointment to be dependent on the recommendation of the Lord Chancellor, the Lord Chief Justice and the heads of the Scottish and Northern Irish judiciary. It would probably have been tactful to include a reference to the latter two in our amendments. The central point of several of our amendments is to make the appointments entirely a matter for the judiciary after consultation with the Prime Minister—in other words, to take this as far away as possible from being a political appointment. It is a point of principle. After all, the Prime Minister can reject recommendations; although she cannot appoint without that support, she could require other recommendations to be put forward, and in our view there should be no hint of a political veto but clear independence. Again, that point is made by the House’s Select Committee on the Constitution. I do not know whether the Minister will tell us that this will be included in the Government’s response to the committee’s report.
On Amendment 178, I thought I had lost the plot by leaving out Clause 203(2) but happily I have not—at any rate not on this issue—as I put the matter of eligibility into our proposed new clause in Amendment 187. We wanted to make the point that further appointments of the judiciary may be needed. The proposed new clause would enable the Lord Chancellor to make recommendations to fill the appointments without adversely affecting the operation of the Court of Appeal and the High Court. I of course appreciate that putting recommendations forward does not need a provision in the Bill, but I know that in certain circles this is a pretty hot topic and I wanted to highlight what I understand may be the added strain on other parts of the judicial system without going on at any greater length at this time in the evening. However, it is important to make the point.
Amendments 183 to 186 question delegation by the IPC to any other judicial commissioner. That seemed wide and unstructured, but on the other hand we wondered whether it might be sensible for the IPC to have a designated deputy, so we included an amendment to that effect.
Amendments 188 and 189 were prompted by briefings from the Law Society of Scotland. The commissioner may be or may become unfit for reasons beyond those listed in the Bill, and consultation with the heads of the judiciary and so on would provide a check on unjustified removal. This area was also picked up by the Constitution Committee, which again made points about the need for public confidence in independence, which makes it inappropriate for the Prime Minister to play any substantive role in the dismissal of the commissioner. Again, the Government may be planning to respond on that matter. I beg to move.
My Lords, this debate on who should appoint the judicial commissioners was discussed at length in the Joint Committee, and we heard lots of evidence on it. The conclusion was that the commissioners might be a little more independent if they were appointed by the Lord Chief Justice rather than by the Prime Minister. Certainly, the perception of their independence would be greatly enhanced if it were that way round and the appointments were not made by the Prime Minister.
We have some amendments in this group which, again, relate to the report from the Constitution Committee. Like the noble Baroness, Lady Hamwee, I acknowledge the amendments that the Government have tabled. They have certainly gone down the road that was indicated during the discussion on this matter in the Commons.
I simply want to ask the Minister whether the Government have given any consideration to going down the road suggested by the Constitution Committee, as opposed to that put forward in the Government’s amendments. I accept that there is not a great deal of difference between the two, as the Government’s amendments say that a person is not to be appointed unless they have been recommended by the Lord Chancellor and the Lord Chief Justice.
Finally, do the Government’s amendments also apply to the reappointment of commissioners and to dismissal? The recommendation in the Constitution Committee’s report related to appointments, reappointments and dismissal, but I am not clear whether the Government’s amendments would also apply in those three circumstances.
My Lords, Clause 203 provides for the Prime Minister to appoint an Investigatory Powers Commissioner and as many judicial commissioners as they see fit to undertake the duties set out in the Bill. The Investigatory Powers Commissioner, assisted by the judicial commissioners, will then undertake the work of ensuring that there is robust and comprehensive oversight of the use of all investigatory powers. If a judicial commissioner becomes unfit to perform the role, Clause 204 provides that they can be removed either by a resolution of both Houses of Parliament or by the Prime Minister acting alone in a very limited set of circumstances.
Many of the amendments to Clauses 203 and 204 seek to alter the relationship between the Prime Minister and the judicial commissioners to an unacceptable extent. These roles have a vital influence on crucial national security decisions and, as the person ultimately responsible for national security, it is only right that the Prime Minister should make these appointments.
It has been suggested that having the Prime Minister involved in the appointments will somehow weaken the independence of the positions. I refute that in the strongest terms. The principle of judicial independence is so deeply ingrained and is upheld by the judiciary to such an extent that suggesting it will be abandoned because the Prime Minister makes the formal appointments is simply unfounded. My noble and learned friend Lord Judge was clear in his evidence to the Joint Committee that having the Prime Minister make the appointments is a practical matter that will not affect the independence of the commissioner in any way. Some of the amendments put forward to Clause 203 would give responsibility for appointments to the Lord Chief Justice of England and Wales. We have difficulty accepting these amendments for two main reasons. First, it would be inappropriate for the Lord Chief Justice of England and Wales to be able to make appointments of judges from Scotland or indeed Northern Ireland, even if there were a requirement to consult the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland.
Secondly, the amendments do not provide a role for the Lord Chancellor and, given her overall responsibility for judicial appointments, it is necessary that the Lord Chancellor should be involved in the process. Instead of accepting these amendments, we propose Amendments 179, 181 and 182. Under these amendments, both the Lord Chancellor, who is ultimately responsible for appointing judges, and the heads of the judiciary, with their responsibility for the deployment of judges, will be able to recommend a suitable candidate for the role of Investigatory Powers Commissioner. Additionally, the Investigatory Powers Commissioner will be involved in recommending candidates for appointment as judicial commissioners.
This amendment significantly strengthens the role of the heads of the judiciary and the Lord Chancellor in appointments. It will mean that the Prime Minister can only appoint an individual who has been recommended and will help to ensure that the very best candidates are selected to perform these crucial roles. It will also ensure that the running of Her Majesty’s Courts & Tribunals Service is not unduly affected by these appointments.
The Lord Chancellor already has the power to recommend that Her Majesty increase, by Order in Council, the maximum number of judges of the High Court and Court of Appeal. Amendment 187 would place the Lord Chancellor under a duty to make such a recommendation if the Lord Chancellor considers it necessary in order for judges to be appointed as judicial commissioners without adversely impacting the operation of the courts. We do not consider that this is necessary. The Lord Chancellor will, by virtue of the amendments that we have proposed, be involved in the appointments process and already has the power to make such recommendations.
Clause 203(7) is entirely practical in its nature. It gives the Investigatory Powers Commissioner discretion to delegate his or her functions to another judicial commissioner. This is to ensure that the range of important functions the Bill will provide to the Investigatory Powers Commissioner can always be carried out—and at very short notice. It is appropriate that the Investigatory Powers Commissioner, who will be a senior member of the judiciary, is, as far as possible, given the freedom to operate in a way the commissioner thinks appropriate. That is why the clause offers discretion as to how functions should be delegated and to what extent.
If the Investigatory Powers Commissioner thought it appropriate to delegate their duties to a single judicial commissioner and create a de facto deputy, there is nothing to prevent them from doing so. Alternatively, they may think it appropriate to delegate certain duties to more than one judicial commissioner. This leaves the choice with the Investigatory Powers Commissioner, who we consider to be best placed to decide how to run their office. I hope that that provides some reassurance to noble Lords and I therefore invite them not to press their amendments.
In relation to government Amendment 190, I reconfirm that the Investigatory Powers Commissioner will have all the powers and access that the commissioner needs in order to carry out effective scrutiny. This is vital to the public’s confidence in the use of these powers and is central to the Bill. But it is also vital that the public servants who work to keep us safe are able to get on with their jobs and can do so safely. That is why the commissioner will be under certain duties, including a duty not to act in a way contrary to the public interest or to jeopardise the success of an operation.
But we do not think it is appropriate that those duties should apply to the judicial commissioners when they are exercising their judicial functions. Amendment 190 will ensure that this is the case. It makes changes to ensure that all of the decisions of a judicial commissioner following a refusal to approve an urgent warrant are caught. It also makes changes consequential on extending the double lock to national security and technical capability notices.
A number of the amendments proposed by noble Lords concern the means through which judicial commissioners may be removed from office. We are sympathetic to the concern behind these amendments. It is clear that a delicate balance needs to be struck. There needs to be some means to remove a commissioner, in the very unlikely event that they prove unfit to carry out the role. But the independence of the judicial commissioners demands that removal from office is treated with the utmost seriousness.
The Bill allows for the removal of commissioners in two ways. The first is by the Prime Minister in a very narrow set of circumstances, such as where the commissioner receives a sentence of imprisonment; and secondly, by the Prime Minister with the approval of both this House and the other place. We cannot accept amendments that would allow the Prime Minister to remove a commissioner on the grounds of inability, neglect of duty or misbehaviour—which are somewhat subjective terms—without Parliament acting as a check. I hope that the Government’s unwillingness to give the Prime Minister such unfettered powers demonstrates our commitment to striking the right balance in the appointment and dismissal procedures.
Conversely, I do not see the need to consult the judiciary and others concerned in the appointment of the commissioners before removing them from office. As I say, it will be possible to remove judicial commissioners from office only in very narrow circumstances or with the approval of both this House and the other place. I hope that noble Lords will agree that these are adequate safeguards to ensure that a commissioner cannot be removed from their post on the whim of the Prime Minister.
With respect to the question asked by the noble Lord, Lord Rosser, the government amendments will apply to reappointments but not to dismissal.
I hope that my response has reassured noble Lords and I invite the noble Baroness to withdraw her amendment.
My Lords, I do not wish to go through all of the amendments sequentially; rather, perhaps I may pick up on just two points.
On independence, the point really being made by the Constitution Committee is about perceived independence. I certainly would not question that. Happily, our judiciary is splendid in that respect. I think it was my noble friend Lord Carlile who talked about the halo; that seems to apply to all of our judiciary unquestioningly. As I say, the point here is the perception.
I acknowledge that we should have referred to the Scottish and Northern Ireland judiciary in our amendments, but I am interested in the point made about the Lord Chancellor. The Lord Chancellor has a role in making the judicial appointment in the first place, which then puts the individual in the position to be appointed as a commissioner. As I understand it, we have a Judicial Appointments Commission and then the Lord Chancellor has a role after it has done its work in allocating the appointees. We were not seeking to exclude the Lord Chancellor; I had just assumed that the Lord Chancellor was in there in any event. I want to make that point clear.
I shall be interested to read the points that have been made just to check that everything has been covered, but perhaps not until next week. I am grateful to the noble and learned Lord, and I beg leave to withdraw the amendment.
There was a point I omitted to mention, which the noble Lord, Lord Rosser, raised. He asked whether the Government had given consideration to the recommendations of the Select Committee. Clearly we have done so, albeit we have not slavishly followed all of them. I reassure the noble Lord that we did so.
Amendment 177 withdrawn.
Amendments 177A to 178 not moved.
179: Clause 203, page 155, line 25, at end insert—
“( ) A person is not to be appointed as the Investigatory Powers Commissioner unless recommended jointly by—(a) the Lord Chancellor,(b) the Lord Chief Justice of England and Wales,(c) the Lord President of the Court of Session, and(d) the Lord Chief Justice of Northern Ireland.( ) A person is not to be appointed as a Judicial Commissioner under subsection (1)(b) unless recommended jointly by—(a) the Lord Chancellor, (b) the Lord Chief Justice of England and Wales,(c) the Lord President of the Court of Session,(d) the Lord Chief Justice of Northern Ireland, and(e) the Investigatory Powers Commissioner.”
Amendment 179 agreed.
Amendment 180 not moved.
Amendments 181 and 182
181: Clause 203, page 155, leave out lines 28 to 30
182: Clause 203, page 155, line 33, leave out subsection (4)
Amendments 181 and 182 agreed.
Amendments 182A to 186 not moved.
Clause 203, as amended, agreed.
Amendment 187 not moved.
Clause 204: Terms and conditions of appointment
Amendments 187ZA to 189 not moved.
Clause 204 agreed.
Clause 205: Main oversight functions
190: Clause 205, page 158, line 44, leave out paragraphs (b) and (c) and insert—
“(b) dealing with the situation where a warrant issued, or modification made, for what was considered to be an urgent need is not approved,(c) reviewing any decisions taken in dealing with the situation mentioned in paragraph (b),(d) deciding whether to approve the giving of a notice under section 225 or 226, or(e) participating in a review under section 230 or deciding whether to give approval under that section.”
Amendment 190 agreed.
Clause 205, as amended, agreed.
Clause 206 agreed.
House adjourned at 9.46 pm.