Review by the Secretary of State

Investigatory Powers Bill – in a Public Bill Committee at 4:15 pm on 19 April 2016.

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Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office) 4:15, 19 April 2016

I beg to move amendment 179, in clause 80, page 62, line 40, leave out “Secretary of State” and insert “Judicial Commissioner”.

Photo of Nadine Dorries Nadine Dorries Conservative, Mid Bedfordshire

With this it will be convenient to discuss the following:

Amendment 190, in clause 80, page 63, line 7, leave out “Secretary of State” and insert “Judicial Commissioner”.

Amendment 191, in clause 80, page 63, line 8, leave out “Secretary of State” and insert “Judicial Commissioner”.

Amendment 192, in clause 80, page 63, line 10, leave out “Secretary of State” and insert “Judicial Commissioner”.

Amendment 195, in clause 80, page 63, line 25, leave out “Secretary of State” and insert “Judicial Commissioner”.

Amendment 196, in clause 80, page 63, line 31, leave out “Secretary of State” and insert “Judicial Commissioner”.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

As members of the Committee will have observed, these tidying-up amendments are consistent with previous amendments that would have entrusted decision making to a judicial commissioner rather than the Secretary of State. We had the discussion in principle in relation to those earlier amendments, which I withdrew, and I will not repeat my arguments now, although I would like to return to them at a later stage.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Westminster Group Leader (Justice and Home Affairs)

As the hon. and learned Gentleman says, the amendments would require that review under clause 80 be by a judicial commissioner rather than the Secretary of State. Will the Government tell us why the provision of such a route of review would not, in their opinion, give the telecommunications providers greater reassurance that notices are not only lawful, necessary and proportionate but stable and legally certain? It seems to me that a review by a judicial commissioner, or at the very least by the Investigatory Powers Commissioner, would provide that reassurance.

Photo of Robert Buckland Robert Buckland The Solicitor-General

The hon. and learned Lady asks a perfectly proper question. I reiterate the position that we have taken in principle: the Secretary of State is the appropriate and accountable person to be responsible for reviewing retention notices. However, although the Secretary of State must be responsible for giving notices and must therefore be the person ultimately responsible for deciding on the outcome of the review, that does not mean that she or he can make the decision on the outcome of the review without consultation—far from it.

Clause 80(6) ensures that the Secretary of State must consult both the Investigatory Powers Commissioner and the technical advisory board. The commissioner must consider the proportionality of the notice; the board must consider the technical feasibility and financial consequences of it; and both must consult the operator concerned and report their conclusions to the operator and the Secretary of State. Only then can the Secretary of State can decide whether to vary, revoke or give effect to the notice. That system provides rigorous scrutiny of the notice and maintains the accountability of the final decision resting with the Secretary of State. We therefore believe it is the best mechanism for review. Accordingly, I commend the unamended clause to the Committee.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 80 ordered to stand part of the Bill.

Clause 81