There is one more point. In response to Amendment 194BA on funding, the noble Earl said that Clause 210 already requires the Investigatory Powers Commissioner to make an annual report to the Prime Minister. The Select Committee on the Constitution was of course aware of that at the time when it made its report, since it comments:
“The Prime Minister is required to publish the report but has a power to order redactions”.
I wonder why the Government do not therefore feel able to go down the road of the Select Committee recommendation over the Investigatory Powers Commissioner having the right to make written representations to Parliament, because they argue it on the grounds of the requirements of judicial independence and the need for public trust and confidence in the system. They say, in suggesting that the Investigatory Powers Commissioner might have the right to make written representations to Parliament, that that is,
“akin to the right conferred on the Lord Chief Justice by section 5 of the Constitutional Reform Act 2005”.
I am not sure why the Government are in effect rejecting the suggestion from the Select Committee on the Constitution, which knew at the time when it made that suggestion that Clause 210 required the commissioner to make that annual report but commented that although the Prime Minister is required to publish it, he has a power to order redactions. That is therefore slightly
different from the Investigatory Powers Commissioner having the right to make written representations to Parliament directly, and it is a right that is akin only to that already conferred on the Lord Chief Justice under the Constitutional Reform Act 2005.