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.
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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.