Legislative Scrutiny: Counter-Terrorism and Security Bill - Human Rights Joint Committee Contents


7  Privacy and Civil Liberties Board

The effect of the Bill

7.1 The Bill empowers the Secretary of State to establish, by regulations, a Privacy and Civil Liberties Board to provide "advice and assistance" to the Independent Reviewer of Terrorism Legislation in the discharge of his functions.[96] The regulations "must" provide for the Board to be chaired by the Independent Reviewer.[97]

Relationship with the Independent Reviewer of Terrorism Legislation

7.2 When the proposed Board was announced in July 2014 at the time of the passage of the emergency Data Retention and Investigatory Powers Act, the Government's intention was that it would replace the Independent Reviewer of Terrorism Legislation. The draft Terms of Reference described the proposed Board as

    "A Board which will replace the current Independent Reviewer of Terrorism Legislation and consider the balance between the threat and civil liberties concerns in the UK where they are affected by policies, procedures and legislation relating to the prevention of terrorism."

7.3 We were concerned to see that such a drastic proposal had been made without any prior consultation, and we wrote to the Home Secretary on 16 July asking if she would agree to hold a public consultation on the proposed abolition of the post of Independent Reviewer of Terrorism Legislation and its replacement by a Privacy and Civil Liberties Board before bringing forward legislation.[98] We also asked whether it was proposed that members of the new Board would have the same access to sensitive material as has been accorded to the Independent Reviewer.

7.4 The Home Secretary, in her response dated 31 July, said that the current Independent Reviewer, David Anderson, had been consulted on the proposal to create the new Board, and that since primary legislation would be required, Parliament would have the opportunity to determine the details of the Board, including its composition and powers.[99] She did not answer our specific question about whether members of the Board would have the same access to sensitive material as the Independent Reviewer has enjoyed. The Government subsequently gave a commitment to holding a public consultation, but this was not conducted before the Bill was introduced. The consultation that we requested in our letter of 16 July was finally launched by the Government on 18 December, by which time the Bill had already completed its Committee stage in the House of Commons.[100]

7.5 We were concerned about certain aspects of the draft Terms of Reference when they were published in July and these concerns have not been dispelled by either the Bill itself or the consultation document. For example, one of the purposes of the Board is said to be to carry out particular inquiries into the impact of particular issues or legislation relating to the prevention of terrorism, "including at the direction of relevant Ministers."[101] Such a power of ministerial direction would not be compatible with the independent scrutiny and oversight which the Government says is the purpose of this proposed reform.

7.6 The intended relationship between the Independent Reviewer and the proposed Board also remains unclear. According to the Government's consultation paper, the purpose of the Board would be "to provide support and advice to the Independent Reviewer in discharging his statutory duties and in undertaking any reviews or inquiries into other aspects of counter-terrorism legislation or policy which impact on privacy or civil liberties issues", and it is envisaged that the Board "could be tasked by the Reviewer to provide specific advice to him or to undertake reviews of particular areas."[102] The Independent Reviewer, in his evidence to us, found the concept of "advice and assistance" difficult to understand.[103] He said that he was already at liberty to seek advice from a wide range of people, which was freely given, and the sort of assistance that he would prefer would be a "junior" who would work directly for him. He was concerned that the proposed Board has "rather a bureaucratic smell" and might just add procedural complexity to the work that he does.[104] According to the Minister, it may be necessary for the members of the Board to enjoy the same degree of access to sensitive material as the Independent Reviewer, but this is a question which has yet to be decided.[105] The Government's consultation paper acknowledges that the Independent Reviewer has been provided with substantial access to sensitive information and discussions under the flexible and pragmatic approach which has been established by the individuals who have performed the role, but "whether a similarly flexible approach could operate successfully in respect of a Board is less clear."[106] In our view it is crucial to the question of the proper relationship between the Independent Reviewer and the Board: a Board of which the Chair has more privileged access to sensitive material than the other members is unlikely to be a happy working arrangement.

7.7 We welcome the fact that the proposed Privacy and Civil Liberties Board is no longer to replace the Independent Reviewer of Terrorism Legislation and the Government's recognition, in its consultation paper, of the importance of ensuring that in making any changes to the current oversight arrangements, the key elements of the Independent Reviewer role are reflected and incorporated into the new approach. However, we are concerned by the proposed function of the Privacy and Civil Liberties Board and its relationship with the Independent Reviewer. In our view, the purpose of the proposed Privacy and Civil Liberties Board should not be to provide "advice and assistance" to the Independent Reviewer in the discharge of the Reviewer's functions, but to publish reports about matters which are within the Reviewer's remit. We also consider that the Independent Reviewer should not chair the new Board, particularly if there is to be differential access to sensitive material. We recommend that the Bill be amended to give effect to our recommendations that the proposed Privacy and Civil Liberties Board should exist separately from the Independent Reviewer and issue reports which may be of use to the Independent Reviewer in his work.

7.8 We also recommend that the opportunity should be taken in this Bill to give effect to the Independent Reviewer's recommendation that the major gaps in his functions should be filled by extending his remit beyond the four specific statutes that he currently reviews, to cover all terrorism legislation and other areas of law to the extent that they are applied for counter-terrorist purposes, such as immigration law and the prerogative power in relation to passports. The Government should also make available the resources necessary to provide the Independent Reviewer with the additional assistance of the kind he says he needs to help him to carry out his functions effectively.


96   Clause 36. Back

97   Clause 36(4). Back

98   http://www.parliament.uk/documents/joint-committees/human-rights/Letter_to_Rt_Hon_Theresa_May_MP_160714.pdf Back

99   http://www.parliament.uk/documents/joint-committees/human-rights/Letter_from_Rt_Hon_Theresa_May_MP_310714.pdf Back

100   Consultation on establishing a UK Privacy and Civil Liberties Board https://www.gov.uk/government/consultations/privacy-and-civil-liberties-board Back

101   Consultation on establishing a UK Privacy and Civil Liberties Board, para. 5.1. Back

102   Consultation on establishing a UK Privacy and Civil Liberties Board, paras 4.5-4.6. Back

103   Evidence of David Anderson QC, 26 November 2014, Q25. Back

104   Ibid., Q23. Back

105   Evidence of James Brokenshire MP, 3 December 2014, Q44.  Back

106   Consultation on establishing a UK Privacy and Civil Liberties Board, para. 5.5. Back


 
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Prepared 12 January 2015