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Investigatory Powers Bill – in a Public Bill Committee at 2:30 pm on 28 April 2016.

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Photo of Joanna Cherry Joanna Cherry Shadow SNP Westminster Group Leader (Justice and Home Affairs) 2:30, 28 April 2016

I beg to move amendment 792, in clause 199, page 154, line 17, at end insert—

“(1A) A Judicial Commissioner may refer to the Investigatory Powers Tribunal any matter the Commissioner considers may have involved the unlawful use of investigatory powers.”.

This amendment would give the Judicial Commissioners power to refer issues of concern to the IPT without having to rely on a complaint being made.

The amendment, which would insert a new subsection in clause 199, was proposed by the Equality and Human Rights Commission and is jointly tabled by the Scottish National party and the Labour party. It would give the judicial commissioners power to refer issues of concern—matters that came to their notice and about which they were concerned—to the Investigatory Powers Tribunal without having to rely on a complaint being made.

Under the Bill as drafted the unlawful use of investigatory powers may not receive sufficient scrutiny, because often the subjects of surveillance will be unaware of it and so not in a position to make a complaint. The amendment would improve the safeguards in the Bill by addressing that problem so that where judicial commissioners are aware of a concern, they can refer it to the Investigatory Powers Tribunal. The judicial commissioners decide whether to approve the issue of warrants and are well placed to identify issues of systemic concern and of law requiring resolution by the tribunal. They are, in fact, much better placed to do so than those subject to surveillance, because they have an overview of the whole picture. It is therefore sensible to permit them to refer matters of concern to the tribunal.

The amendment is in line with a number of recommendations made during prelegislative scrutiny. Recommendation 66 of the Joint Committee on the Draft Investigatory Powers Bill was that

“The Judicial Commissioners should be able to make a direct reference to the Investigatory Powers Tribunal where they have identified unlawful conduct following an inspection, audit, investigation or complaint.”

Recommendation 16 of the Royal United Service Institute’s report, “A Democratic Licence to Operate”, says:

“The judicial commissioners should have a statutory right to refer cases to the IPT where they find a material error or arguable illegality or disproportionate conduct.”

The Interception of Communications Commissioner’s Office, in written evidence to the Draft Bill Committee, made similar recommendations.

In their response to prelegislative scrutiny, the Government did not accept those recommendations, but they appear to have agreed that judicial commissioners should have this power, as it is referred to in the draft codes of practice. For example, the draft code of practice on interception of communications states:

The Commissioner may, if they believe it to be unlawful, refer any issue relating to the use of investigatory powers to the Investigatory Powers Tribunal”.

However, there is no express power to do this in the Bill. We argue that the referral power needs to be set out clearly in the Bill for two reasons.

First, such an important power should be in primary legislation, rather than in a draft code of practice that may be subject to revision after the passage of the Bill through Parliament. If it is in the Bill, any change to the power in future would be subject to greater parliamentary scrutiny, requiring the amendment of primary legislation rather than the mere revision of codes of practice. Secondly, providing for the power in codes of practice but not in the Bill creates uncertainty, which the amendment would resolve. Without the amendment, there may be a lack of certainty about whether the judicial commissioners have what would be a crucial power, and it could be argued that the codes of practice cannot create such a power without it being in the Bill.

The confusion over those issues could be resolved in a straightforward manner by the Government accepting the amendment. Their general response to prelegislative scrutiny referred to the fact that courts and tribunals do not usually have the power to carry out investigations on their own initiative, but the amendment would not give the tribunal that power; rather, it would give the judicial commissioners the power to refer an issue to the tribunal, which the tribunal would then investigate on the initiative of the judicial commissioners. In support of that approach, I note that the Investigatory Powers Tribunal explains on its website:

The Tribunal adopts an inquisitorial process to investigate complaints to get to the truth of what has happened in a particular case, unlike the adversarial approach followed in ordinary court proceedings.”

I suggest that that approach is appropriate in situations such as those envisaged in the Bill, where the victims of the measures will not have knowledge of them but the judicial commissioners will. They may therefore refer to the IPT, and because the IPT is an inquisitorial rather than an adversarial body, it is well placed to investigate a referral from the judicial commissioners. I ask the Government to take on board the amendment in the spirit in which it is intended and indicate that they will agree to it.

Photo of Robert Buckland Robert Buckland The Solicitor-General

I am grateful to the hon. and learned Lady for the way in which she has sought to persuade the Committee of her case. She is quite right that the IPT has an inquisitorial procedure rather than an adversarial one, but it still needs a claimant. It would be wholly inappropriate if the commissioner ended up being the complainant and therefore a party to the proceedings. With respect to her and those who proposed the amendment, although I appreciate their intentions, they mischaracterise the process. There will indeed be a claimant, but that will be the individual or body that is the subject of the error. Where the error is serious, the judicial commissioner will inform that person or body of their right to apply to the IPT for a remedy. As all authorities are already required to provide the IPT with all the information it needs in the course of its investigations, it is difficult to see the benefit of the amendment.

Photo of Suella Fernandes Suella Fernandes Conservative, Fareham

Does my hon. and learned Friend agree that the heavy common law duty of candour on the authorities that will be the subject of such inquiries is applicable to these jurisdictions? Those authorities will have to disclose everything, even if that militates against the applicability of their evidence. That position was endorsed by the divisional court in the case of Chatwani.

Photo of Robert Buckland Robert Buckland The Solicitor-General

I am grateful to my hon. Friend for reminding us about the duty of candour that applies to public bodies, which is of course material.

In addition, the clause has already been amended, pursuant to the Joint Committee’s recommendation 59, to make it clear that a commissioner does not need to consult the Secretary of State before sharing information with or providing assistance to the IPT. That is provided for in clause 199(4) and may well address many of the concerns raised by the hon. and learned Member for Edinburgh South West about the Secretary of State being some sort of bar to proper disclosure and sharing of information. That is not the case under the Bill as already amended. As for providing the IPT with all information relating to relevant errors, as I have said, courts and tribunals cannot and will not consider those issues without a party first having brought a claim.

Within the framework of the clause, we have the necessary structure for proper and frank disclosure to the IPT by the commissioners of relevant material that will assist any party in bringing an action where they have been subject to an error or some form of wrong. To conflate the two would lead to more confusion and would be unnecessary. With respect, I urge the hon. and learned Lady to withdraw the amendment.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Westminster Group Leader (Justice and Home Affairs) 2:45, 28 April 2016

I hear what the Minister says. I wonder whether the amendment might benefit from tightening up, perhaps by making the referral body the Investigatory Powers Commissioner. I will give it further consideration, but for the time being I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 199 ordered to stand part of the Bill.

Clause 200 ordered to stand part of the Bill.

Clause 201