I am grateful for that intervention. To illustrate why we are satisfied, under the general privacy clause—I have a tighter version of new clause 21, but for this purpose that does not matter—one of the general duties is to have regard to
“whether what is sought to be achieved by the warrant, authorisation or notice could reasonably be achieved by other less intrusive means”.
Under this test, a judicial commissioner will have access to the material, will obviously know the Secretary of State’s decision, and will have to ask himself or herself that question. That is a long way from simply asking whether a decision was so unreasonable that no reasonable Secretary of State could have taken it, and that is why the new clause makes it clear that it is close-scrutiny review, rather than long-arm review, that is being dealt with.
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I will deal with two other issues on which Labour has made demands. The first is better protection for sensitive professions, which will come up under a different group of amendments. Amendments on that subject have been tabled by Members on both sides of the House, and by the Government, who have moved in relation to journalists and the protection of their sources, but not in relation to legal privilege. However, I will leave that until we get to those amendments. Secondly, Labour demanded a higher threshold for retaining health records and tabled an amendment in Committee that is now largely reflected in the Government’s new clause 14. Again, there was constructive dialogue on that important issue; a number of Members were very concerned about health and mental health records being made available via the bulk powers.
I will deal briefly with the privacy clause, passing over the bits I have already discussed. There are at least two versions of the clause before the House. The first is the Government’s new clause 5, and the second is Labour’s new clause 21. The essential difference between the two is that whereas the Government’s new clause simply states that the public authority, in carrying out its duties, “must have regard to” other matters that apply in the context, including
“the requirements of the Human Rights Act…and…other requirements of public law”,
our new clause 21 makes it clear that the Human Rights Act 1998 and the requirements of public law are of general application in all decisions. Our clause requires the public authority—the judicial commissioners—to
“give effect to…the requirements of the Human Rights Act 1998, and…other requirements of public law”.
It might be stating the obvious, but the Bill contains a statement from the Home Secretary saying that it complies with section 19 of the Human Rights Act. It therefore must be right that the duty is to “give effect to” the Act and public law, not simply to “have regard to” it. That is the only material difference between the two new clauses. I ask Members to support new clause 21, rather than
new clause 5, because new clause 21 makes it clear that the Act and those powers and duties are important and apply.