§ '.—(1) Anything authorised or required by or under any enactment to be done by a relevant Commissioner may be done by any member of the staff of that Commissioner who is authorised for the purpose (whether generally or specifically) by that Commissioner.
§ (2) In this section "relevant Commissioner" means the Interception of Communications Commissioner, the Security Service Act Commissioner, the Intelligence Services Act Commissioner or any Surveillance Commissioner.'.—[Jane Kennedy.]
§ Brought up, and read the First time.
5.22 pm§ The Parliamentary Secretary, Lord Chancellor's Department (Jane Kennedy)I beg to move, That the clause be read a Second time.
§ Mr. Deputy Speaker (Sir Alan Haselhurst)With this it will be convenient to discuss the following: New clause 3—Investigatory Powers Commission—
Government amendments Nos. 36 to 38, 68 to 83, 87 and 88.
- '.—(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 Commissioners.
- (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—
Government amendments Nos. 55, 92 and 93.
- 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.
532 - 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.'.
§ Jane KennedyAs I am speaking to the Government new clause and amendments, it might help if I explain their purpose and deal with issues that we debated in Committee and that were raised on Second Reading. I wish to make it clear that we have listened carefully to hon. Members' comments and have sought to address their concerns in our amendments.
As I said during the Standing Committee debate, we are sympathetic to the need to rationalise the system of commissioner oversight that we are introducing, wherever possible. However, we are not considering going as far as is suggested in the amendments tabled by the hon. Member for North-East Hertfordshire (Mr. Heald) and his colleagues, which would establish a single unified commission. In Committee, I outlined our thinking on the matter, pointing out that we believe that combining the various secretariats to the commissioners into a single body will achieve most of the benefits of amalgamating the commissioners' roles without sacrificing their distinctiveness.
There are strong arguments for retaining separately in statute the identity of some commissioners, who are experts in their respective fields, regularly visiting those agencies whose activities they oversee. Therefore, as I said in Committee, they are a more effective check than could be a body of commissioners whose responsibilities ranged widely across the spectrum of investigatory powers.
In Committee, I raised questions of accountability and security. Amalgamating commissioners' functions would risk obscuring the lines of accountability and compromising their expertise. The system proposed in the Bill is designed to ensure that the need-to-know principle is strictly observed and that details about particular individuals are shared to the minimum extent possible. Within a unified secretariat, members of staff would work for particular commissioners and this principle could be maintained. Amalgamating different commissioners' functions would make this considerably more difficult.
For those reasons, we tabled Government amendments Nos. 55 and 75, and new clause 8. Between them, those amendments would ensure that each of the commissioners was properly provided with staff who could act on their behalf, thereby facilitating the creation of a unified secretariat. In Committee, I referred to an audit team being sent out under the auspices of the interception of communications commissioner to examine communications data requests. The Government's intention is to create not only a unified secretariat but an 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 must be satisfied that the arrangements for oversight are such that they can genuinely report to the Prime Minister at the end of each year on the operation of the powers. That said, I see no reason why they personally need to visit police stations 533 up and down the land to check, for example, the process for recording authorisations for directed surveillance and the question of whether particular directed surveillance was authorised properly.
The surveillance commissioners established under the Police Act 1997 already have a secretariat. We intend that that secretariat, which is geographically split between London, Edinburgh and Belfast, should be augmented so that it provides for the interception commissioner, intelligence services commissioner and security service commissioner. That does not go as far as the single, unified commission proposed in the Opposition amendments; none the less, I hope that, after listening to my assurances, the Opposition will feel able to withdraw their amendments and accept instead the Government amendments. Our amendments do not go quite as far as the Opposition's in terms of what is on the face of the Bill, but they do go most of the way toward ensuring the consistency that the Opposition want.
I turn my attention to amendments Nos. 36 to 38. Clause 18 places a duty on persons involved in interception of communications to keep secret matters relating to that work and all aspects of interception warrants, and it introduces an offence of unauthorised disclosure. Clause 50 imposes a similar duty to keep secret the giving of certain decryption notices under part III, their contents and related matters. The Bill as it stands does not make express provision to allow disclosures to be made to any commissioner, including the interception commissioner. That is clearly a deficiency and the amendments will correct it, ensuring that even if internal safeguards were to fail, no one would be barred by the criminal law from bringing a matter to the attention of a commissioner.
The remaining amendments, Nos. 68 to 83, 87 to 88 and 92 to 93, deal with the covert investigations commissioner. In Standing Committee, I stated that there might be scope for amalgamating the role of the covert investigations commissioner—the only new commissioner created by the Bill—with that of the Office of the Surveillance Commissioners established by the Police Act. That is what the amendments are designed to achieve. Amalgamating those roles will facilitate consistency in oversight across those public authorities other than the intelligence services that carry out activities under part II.
I hope that those measures will reassure the House that we are doing all we can to ensure that oversight of the powers in the Bill is as seamless as possible, while respecting the properly different functions of the existing commissioners to whom the Bill refers. I believe that the amendments respond to the Opposition's criticisms regarding the Bill's over-bureaucratic tendencies.
§ Mr. Oliver Heald (North-East Hertfordshire)On Second Reading, my right hon. Friend the Member for Maidstone and The Weald (Miss Widdecombe) made the point that part IV is over-bureaucratic. She said:
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.534 In connection with the two additional commissioners referred to in the Bill and mentioned by the Parliamentary Secretary, Lord Chancellor's Department, my right hon. Friend said:I seems that the Government believe that commissioning should be a growth industry.—[Official Report, 6 March 2000; Vol. 345, c. 782.]5.30 pmWe discussed that at length in Committee, and the way in which the debate unfolded was helpful. The Opposition pointed out that there would be at least one extra commissioner, that he would not have any staff and that the proposal was not in the best interests of regulation. The Opposition argued that the work should be streamlined and that the proposed commissioners should have real teeth—the ability to investigate. The Minister has tabled new clauses and amendments that meet many of our concerns.
By allowing members of staff authorised by the commissioner to undertake the work of the commissioner, by reducing the proposed number of commissioners by eliminating the covert investigations commissioner and giving his role to the chief surveillance commissioner, and by providing staff for the purpose of investigation to both commissioners, the Minister has met most of our concerns. The unified secretariat does not go as far as a unified commission, but it is a substantial step in the right direction.
The issue of disclosure to the commissioner was raised in Committee, although it was not a major issue between us. Nevertheless, I am glad to see the technical changes that are being made. The other points made by the Minister meet many of our concerns. In the light of her comments, I do not intend to pursue our new clause and new schedule.
§ Mr. Simon Hughes (Southwark, North and Bermondsey)I am glad to be present, although I feel slightly disadvantaged by the fact that, for very good reasons, my two colleagues who served on the Committee cannot attend. The expertise is therefore elsewhere.
Hon. Members from all parties who are members of the Intelligence and Security Committee would have wished to be present, so it is unfortunate that Report and Third Reading are taking place on a day when they are all away on Committee business, and that they could not be accommodated.
§ The Minister of State, Home Office (Mr. Charles Clarke)I am grateful to the hon. Gentleman for giving way. I am acutely aware of the fact that the Intelligence and Security Committee is in Washington this week. I met the right hon. Member for Bridgwater (Mr. King) to discuss that beforehand, and we did our best through the usual channels to reschedule the debate, but were unable to do so, despite the fact that it would have been better for the consideration of the Bill for all members of the Committee, particularly those who served on the Standing Committee, to be present. I acknowledge the points made by the hon. Gentleman, which we did our best to meet.
§ Mr. HughesI am grateful to the Minister. I intended no criticism of him or his colleagues. I know that my right hon. Friend the Member for Berwick-upon-Tweed 535 (Mr. Beith), like hon. Members from other parties, would have liked to attend, and I know that efforts were made to facilitate that.
May I pass on to the House the apologies of my hon. Friend the Member for Sheffield, Hallam (Mr. Allan), who has particular technical expertise in the matters that we are discussing? I am told that the one south Yorkshire event of the year that he cannot miss is the cutlers feast, which is attended by 500 of the greatest and the best in the commercial world of south Yorkshire. [Interruption.] That is confirmed by the hon. Member for Mid-Worcestershire (Mr. Luff) from the Conservative Front Bench. As the guest speaker today is my right hon. Friend the Member for Ross, Skye and Inverness, West (Mr. Kennedy), my hon. Friend the Member for Hallam did not feel that he could be absent from the event.
I read and followed the debates in Committee. We welcome the simplification of the commissioner system. We support the amendments and new clauses and the thrust of those tabled by the Conservative party. We argued for, and are glad to see, the recognition of the need for a proper secretariat. That clearly was a lacuna. The system cannot be run without adequate back-up, as Ministers have recognised.
We argue that prior judicial authorisation is one of the best ways of ensuring that the right decisions are taken by commissioners and others. We shall come to amendments and new clauses that take us back to that debate.
I appreciate that there is a disagreement between us, but we perceive that as the preferred way of encircling the procedures. I expect that the matter will be left to the other place, where others will want to pick it up. Even if our proposal is not accepted, a properly resourced secretariat that supports the commission's decisions is likely to achieve the best result.
I want to ask the Minister about the implications of new clause 8, which states:
Anything authorised or required by or under any enactment to be done by a relevant Commissioner may be done by any member of the staff of that Commissioner who is authorised for the purpose (whether generally or specifically)…That might be fine in principle, but we need to ensure that the senior and accountable person makes the decisions and that responsibility is not delegated too much or too far.Our discussion is similar to the debate on whether the Home Secretary or the chief constable of a police force signs a warrant and is thus responsible. I should like some assurance from the Minister that the new clause does not hide an intention to delegate. The intention should be for the commissioners to make the decisions, especially when there will be fewer commissioners—rightly, in our view—and the number of those who can properly cover both tasks, which were originally separated, has been reduced by one.
I should also be grateful for illumination on how far and how often the Government envisage delegation taking place. Again, I am not asking for a conclusive answer, but am registering the importance of commissioners, who have been appointed because of their expertise, authority, 536 public recognition and acceptance, and not people further down the chain of command, making decisions on the public's behalf about sensitive and delicate subjects.
§ Jane KennedyI am grateful for the thoughtfulness with which hon. Members have responded to the debate. Given the general support for our proposals, I shall not test hon. Members' patience by making a long speech. However, in response to the point of the hon. Member for Southwark, North and Bermondsey (Mr. Hughes), it is for the commissioners to determine the extent of delegation. As I said earlier, the commissioners have to report directly to the Prime Minister. They must be satisfied that their reports are full, accurate and thoroughly investigated and that they are able to stand by them. It is therefore proper for them to decide the extent of the delegation. I expect it to be to the level in the secretariat that is appropriate to the investigation. I hope that that provides the reassurance that the hon. Gentleman seeks.
§ Question put and agreed to.
§ Clause read a Second time, and added to the Bill.