My Lords, I am pleased to have the opportunity to return to Part 7 of the Bill today, and particularly matters relating to the Privacy and Civil Liberties Board, which I know is a topic which has generated much interest and thoughtful debate among your Lordships at earlier stages of this Bill.
Your Lordships’ House is in no doubt of the importance of the office of the Independent Reviewer of Terrorism Legislation. David Anderson QC, the current incumbent, who has occupied this role since February 2011, and who my right honourable friend the Home Secretary holds in the highest regard, already does an excellent job reviewing key pieces of UK counterterrorism statutes. His recommendations help us to ensure that our counterterrorism legislation is fair, effective and proportionate, and that it strikes an appropriate balance in the face of the very real and serious threat we face from terrorism, which has been acknowledged across all sides of the House.
This office, which has existed in various forms over 35 years, has traditionally been occupied by individuals of judgment, independence and legal expertise. A number of previous incumbents are esteemed Members of this House and have contributed to vital public debate about our counterterrorism powers. It is with this in mind that the Government have given very careful consideration to the weight of views expressed by this House, the other place and David Anderson himself during the debate on this Bill, and it is why, in part, I am bringing forward Amendments 16 to 21 for
your Lordships to consider today. These amendments make important changes to the role of the independent reviewer and, separately, are intended more clearly to define his relationship with the proposed Privacy and Civil Liberties Board already provided for in the Bill.
Of the six amendments proposed by the Government, the first—Amendment 16—recognises that unsatisfactory gaps have developed over time in respect of the independent oversight of key pieces of counterterrorism legislation which in turn make it more challenging for the independent reviewer, and indeed the Government, to provide full assurance to the public that all of our counterterrorism powers operate as intended.
Amendment 16 therefore inserts a new clause which will extend the remit of the Independent Reviewer of Terrorism Legislation to include other counterterrorism legislation to ensure that those Acts are the subject of independent scrutiny and, in turn, that the Privacy and Civil Liberties Board, to which I will turn later, can support him in reviewing the operation of these laws.
In practice, that will mean that in addition to those Acts currently subject to review—the Terrorism Act 2000, Part 1 of the Terrorism Act 2006, the Terrorist Asset-Freezing etc. Act 2010 and the Terrorism Prevention and Investigation Measures Act 2011—the independent reviewer will also be able to review Part 1 of the Anti-terrorism, Crime and Security Act 2001, and Part 2 of that Act in so far as the power is used in cases relating to terrorism; the Counter-Terrorism Act 2008; and Part 1 of this Bill, containing the new temporary passport seizure and temporary exclusion order powers, when enacted.
It is right and proper, however, that we do not risk the important role of the independent reviewer becoming diluted by expanding its remit to a much wider and less well defined list of statutes. This change to the independent reviewer’s remit will be limited to true counterterrorism provisions and will ensure that its scope does not stray into other areas which might properly fall—or at the very least stray—within the remit of other independent oversight bodies.
I will deal with the other government amendments in a moment but, before doing so, I would like to touch on Amendment 16A, tabled by my noble friend Lady Hamwee. This amendment would extend the independent reviewer’s remit further still by adding to it the statutory responsibility to review Part 2 of the Justice and Security Act, covering closed material procedures, and the power of the Secretary of State to deprive citizenship, in certain circumstances, under Section 66 of the Immigration Act 2014.
I recognise that my noble friend has a long-standing interest in those specific issues, and I appreciate that she has tabled the amendment intending to ensure that important areas of the law have sufficient oversight. However, I hope that I can reassure her that, in the Government’s view, that change is unnecessary.
The closed material provisions contained within Part 2 of the Justice and Security Act 2013 are already by their very nature subject to robust oversight. Each application for a closed material procedure is scrutinised in detail by a judge. The judge then keeps that application under review as necessary throughout the proceedings,
to ensure that there is no detriment or unfairness to any party. The Ministry of Justice also publishes annual statistics on the overall use of closed material procedures.
In addition to that judicial oversight inherent in any individual use of CMP provisions, Parliament has already provided for review of the power as a whole. Section 13 of the 2013 Act requires that the Secretary of State must—I repeat “must”—appoint a person to review the operation of Sections 6 to 11 of the Act, the closed material procedure provisions, at the five-year mark from commencement.
I hope that your Lordships will appreciate that bringing the provisions within scope of the review by the independent reviewer could result in unnecessary duplication and may unnecessarily encroach into the territory of the appropriate reviewer, to be appointed by the Secretary of State in future.
Similarly, Parliament has already provided that the use of immigration powers is overseen by the Independent Chief Inspector of Borders and Immigration. The Immigration Act 2014 contains the power to deprive an individual of British citizenship where their conduct is seriously prejudicial to the United Kingdom. Section 66 of the Act provides that within one year of that provision’s commencement, which is July this year, the Secretary of State must—and again the word is “must”—appoint a person to review its operation. That person’s report will be laid before Parliament. That person could be David Anderson, as we have previously said, but we also need to be mindful of the many competing demands on his time. The important point here is that the provision already exists in statute, and we think that it would be inappropriate to seek to duplicate it in this legislation.
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Perhaps I could now revert to the other amendments which the Government have tabled. We recognise that extending the remit of the independent reviewer cannot be considered in isolation, and inherently brings into question the appropriate reporting frequency for those Acts which are subject to review. David Anderson has previously reported that he is operating at the limit of his capacity. The Government are clear that he should not be constrained in his ability to carry out these important reviews, even with the assistance and advice of a fully constituted Privacy and Civil Liberties Board and the secretariat that will support that board.
This is why, through Amendments 17, 20 and 21, we are removing the current requirement for the independent reviewer to review annually all legislation within his purview, with one exception which I will come to in a moment. This will provide him with significant flexibility in his work programme, so that he is able to concentrate on areas which he believes are the most deserving of review in a particular period. The discretion being afforded to the independent reviewer by these amendments demonstrates the Government’s trust in this long-standing and highly effective office. I hope that your Lordships will agree that it is right that one piece of legislation, the Terrorism Act 2000, which is a core piece of counterterrorism legislation, should
continue to be subject to annual review. This Act will be the sole statute which remains subject to an annual reporting requirement.
Let me now turn to the important change we are making to the proposed Privacy and Civil Liberties Board which is set out at Clause 42 of the Bill, and which is intended to further support the Independent Reviewer of Terrorism Legislation. Noble Lords and a number of my honourable and right honourable friends in the other place have been clear during the debates on this measure that it is essential for there to be clarity about how the Privacy and Civil Liberties Board will operate alongside the independent reviewer, given its intended status as a board to support him and help him discharge his functions.
The Government have reflected carefully on the views of your Lordships and further discussion with David Anderson, and are bringing forward Amendments 18 and 19 to Clause 42. David Anderson has acknowledged that the relationship between him and the new board is resolved. We intend that this board will genuinely enhance the independent reviewer’s capacity and, if it is to do so, it is right that he should be able to direct board members to carry out particular tasks. These amendments therefore explicitly provide that the board will operate under his direction and control.
In addition, we are ensuring that the regulations made under this clause provide for the Secretary of State to appoint members to the board, having considered recommendations from the chair of the board, thus ensuring that the independent reviewer will have a key role in the appointment of the board’s members.
David Anderson has helpfully posted his reaction to these amendments on his website over the weekend. I am pleased to say that he describes his views as,
“on the whole, rather positive”.
He says that the Government have listened to what he has said and that these amendments address three of the five concerns which he had previously expressed. These are, first, expanding the independent reviewer’s remit; secondly, giving him greater flexibility in reporting; and thirdly, clarifying the relationship between the independent reviewer and the Privacy and Civil Liberties Board. I have already described those changes in detail.
I shall deal briefly with the other two issues that David Anderson raised and seek to explain to your Lordships why we have not sought to address them. David Anderson would like greater flexibility to review powers not contained in specific counterterrorism legislation. I have already touched on this in dealing with the amendment from my noble friend Lady Hamwee. The reason why we did not seek to legislate on that point is that we do not want to create overlap or ambiguity in our oversight arrangements. Many powers exercised in the counterterrorism field already have existing arrangements for review and oversight. For example, the use of interception and acquisition of communications data, provided for in the Regulation of Investigatory Powers Act 2000, is a vital tool in the fight against terrorism but is reviewed by the independent Interception of Communications Commissioner. Similarly, surveillance powers in that Act are regulated by the Surveillance Commissioner. As I have already said,
the use of immigration powers is overseen by the Independent Chief Inspector of Borders and Immigration. Such duplication of oversight arrangements could reduce the clarity for the public on where to look for assurance about the proper exercise of such powers.
I shall deal briefly with the other issue raised by David Anderson. He is concerned about the lack of written assurance of access to classified papers. I simply make the point that no Government have ever sought to withhold sensitive papers from the independent reviewer, a point which he himself explicitly recognised in his last annual report and on his blog. I can imagine the opprobrium that would be heaped on the Government were they to seek to do so; it would be a powerful disincentive, particularly as comments on any inappropriate decisions, in his view, would no doubt quickly appear on his blog.
It is worth reading in full the final paragraph of David Anderson’s blog. He says:
“But it would be wrong to sound a churlish note. These amendments, should they find their way into law, will greatly improve the Bill. It will be for me to ensure that they improve the quality of the independent review for which I am responsible”.
I very much welcome this conclusion. I also welcome the sentiment expressed earlier in his message, which I hope will reassure those of your Lordships who have questioned the wisdom of establishing the Privacy and Civil Liberties Board at all. He says:
“If skilled and practical people are appointed to the Board, content to work under the Reviewer’s direction, the capacity for independent review will be improved”.
I trust that government Amendments 16 to 21 provide greater clarity and reassurance about our approach to these important issues, and I hope that I have been able to reassure my noble friend Lady Hamwee that her amendments are not needed, given that there is already existing statutory provision for independent review of the Acts that she is concerned about. I would therefore invite her not to press her Amendment 16A and I beg to move.
Amendment 16A (to Amendment 16)