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Session 1999-2000
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Standing Committee Debates
Regulation of Investigatory Powers Bill

Regulation of Investigatory Powers Bill

Standing Committee F

Thursday 6 April 2000

[Mrs. Ray Michie in the Chair]

Regulation of Investigatory Powers Bill

Clause 53

New Commissioners

9 am

Mr. Oliver Heald (North-East Hertfordshire): I beg to move amendment No. 196, page 53, line 40, leave out from beginning to `shall' in line 44 and insert—

    `(1) The Prime Minister may appoint Investigatory Powers Commissioners.

    (2) The Investigatory Powers Commission'.

The Chairman: With this we may discuss the following amendments:

No. 197, in page 54, line 13, leave out `Covert Investigations Commissioner' and insert


No. 198, in page 54, line 14, leave out from `review' to end of line 16.

No. 199, in page 54, line 27, leave out `Interception of Communications Commissioner and the Covert Investigations Commissioner shall each' and insert

    `Commission shall'.

No. 200, in page 54, line 29, leave out `his' and insert

    `the Commission's'.

No. 201, in page 54, line 34, leave out `either Commissioner' and insert

    `the Commission'.

No. 202, in page 54, leave out lines 39 and 45 and insert

    `he holds or has held a high judicial office (within the meaning of the Appellate Jurisdiction Act 1876).

No. 203, in page 55, line 3, leave out `the Interception of Communications Commissioner' and insert

    `an Investigatory Powers Commissioner'.

No. 204, in Clause 54, in page 55, line 32, leave out `Interception of Communications Commissioner' and insert


No. 205, in Clause 54, in page 55, line 46, leave out `that Commissioner' and insert

    `the Commission'.

No. 206, in Clause 54, in page 56, line 1, leave out from `to' to second `Commissioner' in line 2 and insert `a'.

No. 207, in Clause 54, in page 56, line 4, leave out from `that' and insert `a'.

No. 208, in Clause 54, in page 56, line 10, leave out `the Interception of Communications' and insert `a'.

No. 209, in Clause 54, in page 56, line 16, leave out from the second `the' to `make' in line 18 and insert

    `Commission shall'.

No. 210, in Clause 54, in page 56, line 19, leave out `that Commissioner's functions' and insert

    the Commissioner's function under this Act.'.

No. 211, in Clause 55, in page 56, line 35, leave out from `(5),' to `keep' in line 36 and insert

    `the Commission shall,'.

No. 212, in Clause 55, in page 56, line 37, leave out from first `review' to end of line 38.

No. 213, in Clause 55, in page 57, line 1, leave out from `(5),' to `keep' in line 3 and insert

    `the Commission shall,'.

No. 214, in Clause 55, in page 57, line 3, leave out from first `review' to end of line 4.

No. 191, in Clause 55, in page 57, line 29, leave out from `The' to end of line 33 and insert

    `Chairman of the Commission shall keep under review—'.

No. 192, in Clause 55, in page 58, line 15, leave out `Chief Surveillance Commissioner' and insert

    `Chairman of the Commission'.

No. 193, in Clause 55, in page 58, line 15, leave out `ordinary Surveillance'.

No. 194, in Clause 55, in page 58, line 18, leave out `Chief Surveillance Commissioner' and insert

    `Chairman of the Commission'.

No. 195, in Clause 55, in page 58, line 20, leave out `Chief Surveillance Commissioner' and insert `Chairman of the Commission'.

New clause 6— Investigatory Powers Commission—

    `.—(1) There shall be a body of Commissioners named the Investigatory Powers Commission, consisting of the Investigatory Powers Commissioners.

    (2) The Commissioner under section 8 of the Interception of Communications Act 1985, the Security Service Act Commissioner, the Intelligence Services Act Commissioner, the Chief Surveillance Commissioner and the ordinary Surveillance Commissioners shall each henceforth be known as Investigatory Powers Commissioners.

    (3) The Secretary of State may by order provide for the discharge under the general direction of the Commission of any of the functions of one Commissioner by any Commissioner.

    (4) The Secretary of State shall appoint one of the Commissioners to be chairman of the Commission.

    (5) The Secretary of State may by order amend subsection (2) insofar as it regulates the number of Commissioners.

    (6) Schedule (Investigatory Powers Commission) shall have effect with respect to the Commission.

    (7) No order shall be made under this section unless a draft of it has been laid before Parliament and approved by a resolution of each House.'.

New schedule 1—Investigatory Powers Commission —

    1. The Investigatory Powers Commission may appoint such officers and servants as they think fit, including investigating officers, subject to the approval of the Secretary of State as to numbers and as to remuneration and other terms and conditions of service.

    2. Subject to the provisions of this Act, the Commission may make arrangements for the regulation of their business.

    3. The arrangements may, with the approval of the Secretary of State, provide for the discharge under the general direction of the Commission of any of the Commission's functions by any Commissioner.

    4. Anything done by a Commissioner shall have the same effect as if done by the Commission.'.

Mr. Heald: The substance of this group of amendments is in new clause 6 and new schedule 1. On Second Reading, my right hon. Friend the Member for Maidstone and The Weald (Miss Widdecombe) pointed out that the Bill is over-bureaucratic. She said:

    Part IV, which deals with scrutiny, proposes that the Prime Minister should be able to appoint two new commissioners to review the performance of the Home Secretary in exercising his functions. That would involve a new interception of communications commissioner and a new covert investigations commissioner. We already have a Security Service Act commissioner, an Intelligence Services Act commissioner, a chief surveillance commissioner and ordinary surveillance commissioners. None of those appears to have an independent investigatory team available to them. It seems that the Government believe that commissioning should be a growth industry.—[Official Report, 6 March 2000; Vol. 345, c. 782.]

New clause 6 would tackle the issue by retaining the existing commissioners within a unified commission, the latter having the commissioning role envisaged in the Bill. That would provide new flexibility, enabling the Secretary of State to order that one commissioner may discharge the functions of another. There would be a chairman. The new commission would be called the investigatory powers commission and the commissioners would be called investigatory powers commissioners.

The Secretary of State would be able to change the number of commissioners; I would expect him to reduce it. The schedule would provide for the Commission to have its own secretariat and investigating officers. The new functions of the commission could be performed by any commissioner. The role of appointing replacements would fall to the Prime Minister and the qualification would be high judicial office.

Essentially, the functions would remain the same, but within the streamlined structure of a single secretariat with investigating officers. That would make reviewing the exercise of powers and the performance of the Secretary of State and the authorities in parts I to III of the Bill a real function. Commissioning would not be a growth industry as extra commissioners would not be created.

This part of the Bill has invited some encouraging noises, and I look forward to the Parliamentary Secretary's reply.

The Parliamentary Secretary, Lord Chancellor's Department (Jane Kennedy): It may benefit of the Committee if I explain our thinking on the amendments. As the hon. Member for North-East Hertfordshire (Mr. Heald) said, much comment was made on Second Reading about what he describes as the plethora of commissioners in the Bill. We said then that we take such comments seriously, and we continue to do so. We are sympathetic to the need to rationalise an oversight on what he describes as an industry of commissioners.

In considering that, we have identified two areas of possible rationalisation. However, the issues are complex and, at this stage, I have not been able to table amendments to put our thoughts into effect. I shall address those two areas shortly.

First, however, let me say that, although we are considering some rationalisation of the number of commissioners, we are not considering going as far as the hon. Gentleman and his colleagues suggest and establishing a single unified commission. I hope that the main benefits of unification can be achieved by unifying the secretariat alone. There are benefits in retaining the identity of some commissioners separately in statute because the existing commissioners are heavyweight judicial figures. They acquire considerable expertise over time, not least as a result of regular visits to those agencies whose activities they oversee. Therefore, they are a more effective check than would be a body of commissioners whose responsibilities ranged widely across the spectrum of investigatory powers. For example, Lord Nolan, the interception of communications commissioner, focuses exclusively on the interception of communications and provides a useful check on what agencies are doing in highly technical areas and source advice when knotty legal issues arise.

Questions of accountability and security also arise. An amalgamation of their functions would risk obscuring lines of accountability as well as compromising the expertise that they currently maintain. On security, I simply note that the system proposed by the Bill is designed to ensure that the need-to-know principle is strictly observed. Details about particular individuals are shared to the minimum extent possible. Within a unified secretariat, members of staff would work for particular commissioners, so the need-to-know principle could be maintained. Amalgamating the functions of different commissioners would make that considerably more difficult.

I shall explain to Committee members two areas that we have been considering. The first is the suggestion that the commissioners should belong to a unified secretariat. Earlier, my hon. Friend the Minister of State mentioned an audit team being sent out under the auspices of the interception commissioner to examine communications data requests. That demonstrates that we are considering a unified and investigative secretariat along the lines suggested in the new schedule.

Those staff would act entirely in accordance with a plan established by the commissioners. The commissioners themselves must be satisfied that the arrangements for oversight are such that they can genuinely report to the Prime Minister at the end of every year on the operation of the powers. Having said that, I see no reason why they need pay personal visits to police stations throughout Britain to check, for example, the process for recording authorisations for directed surveillance and whether particular directed surveillance is properly authorised.

The surveillance officers established under the Police Act 1997 already have a secretariat. My hon. Friend the Minister of State and I are considering whether that secretariat, which is geographically split between London, Edinburgh and Belfast, could be augmented to provide support for the interception commissioner, the intelligence services commissioner, the security services commissioner and the covert investigations commissioner, as necessary.

Two questions are at stake. The first is the desirability of that arrangement. There are security issues, for example, about whether it would be sensible to house the intelligence services commissioner, who examines the activities of the Secret Intelligence Service and Government communication headquarters, with people supporting the covert investigations commissioners, who may support those who check the activities of the sandwich police in the Department of Health so beloved of the right hon. Member for Penrith and The Border (Mr. Maclean).

In addition to the policy aspect, there are the questions of how far the arrangement for such a secretariat would need to be specified in the Bill or whether the secretariats could be set up with administrative arrangements. There are therefore several reasons why I cannot report any progress on the question of a unified secretariat, on which, however, we continue to work hard. We certainly intend to provide reassurance and table amendments while the Bill is still in Parliament.

On the second area for rationalisation, we believe that there may be scope for amalgamating the role of the new covert investigations commissioner—the only new commissioner created by the Bill—with that of the Surveillance Commission. We are also considering the roles of the intelligence services commissioner and the security service commissioner, which are currently filled by the same person, and have been for some time. We may reflect that reality in the Bill by amalgamating the roles. Many interests are at stake, but I can report some positive thoughts in that direction, and I hope that we will be able to table an amendment on Report.

Let me spell out what that would mean. At the moment, we have five commissioners, and I recently outlined possible plans to rationalise the situation. We would amalgamate the roles of the security service commissioner, and those of the surveillance commissioner and the covert intelligence commissioner, but we would keep the interceptions commissioner separate. That does not go as far as establishing the unified commission set out in the amendments. None the less, I hope that hon. Members will feel reassured by our thinking and withdraw the amendment. Our intention is not to go quite as far as the hon. Member for North-East Hertfordshire suggests, but the proposals for a unified secretariat will, I hope, go most of the way towards introducing the consistency that he seeks.


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Prepared 6 April 2000