The pre-legislative Joint Committee on the Draft Investigatory Powers Bill was appointed yesterday and had its first meeting this morning. On 4 November, the Home Office published the enclosed draft Delegated Powers Memorandum to accompany the draft Bill. The draft Memorandum offers the Home Office’s view on the provisions in the draft Bill which confer powers to Ministers to make delegated legislation.
The Joint Committee considered the draft Memorandum at its first meeting and agreed that the views of the Delegated Powers and Regulatory Reform Committee would be most valuable and should be sought at the earliest opportunity. Accordingly I am writing to you to request that your Committee consider the memorandum with a view to giving the Joint Committee advice on the appropriateness of the delegations as currently drafted. We would be grateful, if possible, for a view from the Committee before the House adjourns for the Christmas recess.
The time available for our scrutiny is unusually short, and I would be most grateful if the Committee was able to offer a view before the two Houses rise for the Christmas recess.
I am copying this letter to the DPRRC clerk, Christine Salmon Percival, and to the Lords clerk of the Joint Committee on the draft Bill, Duncan Sagar.
The Delegated Powers and Regulatory Reform Committee welcomed the opportunity to contribute to the important work of your Joint Committee. I enclose, in response to your letter of 26 November, a submission setting out the views of the Committee on the delegations of power contained in the draft Investigatory Powers Bill. I hope that you will find it of assistance. Should an Investigatory Powers Bill be introduced into the House of Lords, we will, of course, report to the House in the usual way.
1)On 26 November 2015, the Rt Hon the Lord Murphy of Torfaen, Chairman of the Joint Committee on the Draft Investigatory Powers Bill, invited the Delegated Powers and Regulatory Reform Committee to make a submission about the delegations of power in the draft Bill. The Home Office has provided a delegated powers memorandum. We welcome this opportunity to assist the Joint Committee in its work. For the most part we consider the delegations of power to be unexceptionable. We would however like to draw the attention of the Joint Committee to the following matters.
2)Clause 43 prohibits the disclosure of information about warrants issued under Part 2 of the Bill. Under Clause 44 it is an offence to disclose information in contravention of Clause 43. There are exceptions to the prohibition in Clause 43 and these are set out in subsection (5). One of those exceptions, in subsection (5)(g), is a disclosure made by a public postal or telecommunications operator which relates to the number of warrants in which the operator has been involved. In order to take advantage of this exception, any disclosure of information must be in accordance with a direction given by the Secretary of State. Such a direction would not be subject to any Parliamentary procedure.
3)It is clear from Clause 43(7) that a single direction may be given to more than one operator, and therefore that a direction may impose requirements which are not operator specific but which apply generally to all operators or all operators of a particular description. The Department explains in paragraph 22 of the memorandum that it is appropriate for the power to be exercisable by administrative direction because it may be necessary for it to be specific to a particular operator. In our view, however, where the power imposes requirements which apply generally, it should not be left to a direction but contained in subordinate legislation and subject to Parliamentary scrutiny.
4)Part 3 of the Bill is concerned with the regime for authorising the obtaining of communications data by certain public authorities. An authorisation has to be given by a designated senior officer of an authority and has to relate to the obtaining of data for one of the public interest purposes set out in Clause 46(7). The provisions of Part 3 to a large extent reflect the existing provisions of Chapter 2 of Part 1 of the Regulation of Investigatory Powers Act 2000 (“RIPA”).
5)The public authorities on whom the powers are conferred are listed in column 1 of the table in Schedule 4 to the Bill. Column 2 of the table sets out the offices, ranks or positions which a person must hold in order to be able to act as a designated senior officer. Column 3 sets out any limitations on the information which may be obtained under an authorisation given by an officer of a particular rank; and Column 4 specifies the purposes for which authorisations can be given. Clause 54 includes supplementary provision about designated senior officers.
6)Clause 55(1) confers power on the Secretary of State by regulations to amend Clause 54 and Schedule 4. The power includes a power to add or remove a public authority from the list in Schedule 4 and to modify an entry about the rank etc. of a designated senior officer. The regulations can also impose or remove restrictions on the authorisations which a particular kind of designated senior officer may give, and impose or remove restrictions on the circumstances or purposes for which authorisations may be given.
7)We accept the reasons given by the Department in paragraph 31 of the memorandum as to why there is a need for this delegated power: that is, the need to make changes to reflect the creation, abolition and re-structuring of public authorities, and otherwise to reflect changes in circumstances. We also consider that, given the sensitive nature of the powers which are being given to public authorities under Part 3 of the Bill, the enhanced affirmative procedure (which is based on that in the Public Bodies Act 2011) provides an appropriate level of Parliamentary scrutiny. In contrast, section 25 of RIPA also contains powers which allow changes to be made to the relevant public authorities and to the ranks etc. of the persons who are designated for the purposes of Chapter 2 of Part 1 of that Act. In that case, however, the ordinary affirmative procedure applies where an order will have the effect of conferring the powers to obtain communications data on a new public authority. The Committee welcomes this strengthening of scrutiny procedures under the Bill.
8)Clause 56(1) sets out circumstances in which the negative rather than the enhanced affirmative procedure will apply to regulations under Clause 55(1). These are where the regulations only have effect:
9)We consider the negative procedure is appropriate where the regulations remove a public authority from the list in Column 1 of the table in Schedule 4, since their sole effect will be to reduce the number of bodies who are capable of exercising the powers to obtain communications data. We are not however convinced that the negative procedure affords the appropriate level of scrutiny in all cases where it is proposed to modify Column 2 of the table in Schedule 4. We consider the requirement for an authorisation to be given at a high level within an organisation offers an important protection against an inappropriate use of the powers conferred by Part 3. Accordingly, we think that any regulations modifying Column 2 which have the effect of lowering the level at which an authorisation has to be given should be subject to at least the affirmative procedure.
10)Clause 57 provides for a local authority to be a “relevant public authority” for the purposes of Part 3 Subsection (2) of that clause defines who is a designated senior officer in a local authority, and subsection (4) confers a power on the Secretary of State by regulations to amend subsection (2). Regulations under Clause 57(4) are subject to the negative procedure. For the reasons given in paragraph 9, we consider that any regulations which have the effect of lowering the level at which an authorisation has to be given should be subject to at least the affirmative procedure.
11)Clause 177(1) confers a power on the Secretary of State by regulations to modify the functions of the Investigatory Powers Commissioner (IPC) and other Judicial Commissioners. By virtue of subsection (2) of that clause, this power includes a power to amend legislation, including a power to amend the provisions of the Bill itself once enacted.
12)In paragraph 68 of the memorandum, the Department explains the need for this power as enabling it “to respond quickly and flexibly” to changes in the statutory functions of public authorities, or changes in the circumstances affecting such functions, to ensure that the IPC and the other Judicial Commissioners have the appropriate powers to carry out their oversight functions. The memorandum also explains that the power would allow further detail to be added to the functions of the IPC and the other Judicial Commissioners.
13)While this explanation may indicate that some form of power is needed to allow modifications to be made to the functions of the IPC and the other Judicial Commissioners, we are concerned about the very wide scope of the power conferred by Clause 177, particularly as it would allow amendments to be made to provisions of the Bill itself. Parts 2, 5 and 6 of the Bill require the approval of the IPC or another Judicial Commissioner for warrants issued under any of those Parts. On the face of it, Clause 177 would enable the Secretary of State by regulations to make amendments to these functions so as to weaken the approval regime, and even to provide for their removal in specific cases. The Government have made it clear in the guidance covering the draft Bill that the role of the IPC and the other Judicial Commissioners in approving warrants provides a crucial safeguard over the interception etc. powers conferred by the Bill.
14)In the circumstances, it seems to us inappropriate for the powers conferred by Clause 177 to be drawn in a way that would allow the Judicial Commissioners’ functions in respect of the approval of warrants to be modified by subordinate legislation.
15)Clause 201(2) confers a power on the Secretary of State by regulations to make such consequential provision as he or she considers appropriate. In common with many provisions of this kind, Clause 201(3) provides that this power may be exercised by amending or otherwise modifying provisions of primary or subordinate legislation.
16)Clause 201(3) refers to “enactments” and it is clear from the way in which this expression is defined in Clause 195(1) that the powers conferred by Clause 201(3) include the power to amend or otherwise modify future enactments. While it is reasonable for there to be a need to amend past enactments to ensure that they fit with the provisions of the Bill, the same does not necessarily apply to future legislation which should be capable of taking account of the Bill’s provisions when it is enacted. Accordingly, we would ordinarily expect a convincing case to be made in the memorandum for a power to use subordinate legislation to amend future primary legislation. In this case, the memorandum says nothing about why it is necessary to have the power to amend future enactments. Two precedents are given in paragraph 113 of the memorandum, but in neither case does the power include a power to amend future enactments. We regard this aspect of the power as being inappropriate in the absence of a reasonable explanation for why it is needed.
17)Regulations under Clause 201(2) are subject to the affirmative procedure where they amend or repeal a provision of primary legislation. The negative procedure applies in all other cases, including where the regulations otherwise modify a provision of primary legislation. Non-textual modification of primary legislation can however be used to make changes which are no less significant than textual amendments. We have expressed the view, therefore, on a number of occasions–most recently in our reports on the Scotland Bill and the Enterprise Bill–that, as a matter of general principle, non-textual modifications of primary legislation should be subject to the same level of Parliamentary scrutiny as textual amendments, namely, the affirmative procedure.
678 Delegated Powers and Regulatory Reform Committee, Scotland Bill; Trade Union Bill; Enterprise Bill; Draft Legislative Reform (Exempt Lotteries) Order 2016 (15th Report, Session 2015–16, HL Paper 64) paras 10 to 13
679 Delegated Powers and Regulatory Reform Committee, Enterprise Bill [HL]: European Union Referendum Bill (9th Report, Session 2015–16, HL Paper 42) paras 17 to 21