HL Deb 28 June 2000 vol 614 cc1046-9

(" .—(1) There shall be an Investigatory Powers Commission consisting of—

  1. (a) the Commissioner under section 8 of the Interception of Communications Act,
  2. (b) the Security Service Act Commissioner,
  3. (c) the Intelligence Services Act Commission.
  4. (d) the Chief Surveillance Commissioner, and
  5. (e) such additional Commissioners as the Secretary of State shall appoint by order.

(2) The Secretary of State shall by order provide for the discharge under the general direction of the Commission of any of the functions of each of the Commissioners.

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

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

(5) 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.").

The noble Lord said: In view of our previous discussions, I do not wish to pursue this matter. Therefore, I do not propose to move Amendment No. 194.

[Amendment No. 194 not moved.]

Clause 57 [The Tribunal]:

Lord Bach moved Amendments Nos. 194A to 195B: Page 61, line 41, leave out paragraph (e). Page 62, line 2, leave out (",(e)"). Page 62, line 25, at end insert ("or under any enactment contained in or made under an Act of the Scottish Parliament which makes provision equivalent to that made by that Part"). Page 62, line 33, leave out subsection (10). Page 62, line 45, leave out from ("making") to end of line 47 and insert ("of any disclosure in an intelligible form (within the meaning of section 52) of protected information by a person who is or has been in possession of the key to that information").

On Question, amendments agreed to.

Clause 57, as amended, agreed to.

[Amendment No. 196 not moved.]

Schedule 2 [The Tribunal]:

Lord Bach moved Amendment No. 197: Page 85, line 26, at end insert— ("(6) If the Scottish Parliament passes a resolution calling for the removal of a member of the Tribunal, it shall be the duty of the Secretary of State to secure that a motion for the presentation of an Address to Her Majesty for the removal of that member, and the resolution of the Scottish Parliament, are considered by each House of Parliament.").

The noble Lord said: In moving Amendment No. 197, I wish to speak also to Amendments Nos. 198 and 200. I referred earlier to the decision of the Scottish Executive and Parliament to use the commissioners established under this Bill for oversight of the authorisations permitted under the Regulation of Investigatory Powers (Scotland) Bill. I applaud their decision to introduce such consistency across the UK. We believe that it is important, notwithstanding the move to devolution, that the use of such powers is used consistently across the Scottish Border as far as possible. After all, our shared objective is compatibility with convention rights.

The Scottish Executive has also elected to use the tribunal established under this Bill to provide the means of redress in instances where individuals may feel that it is owed to them after the use of the powers in this Bill. Again, we applaud that decision. Amendments Nos. 197, 198 and 200, tabled in the Government's name, are consequential on the decision of the Scottish Executive to use the tribunal in that way. The amendments in question grant a direct involvement for the Scottish Parliament or Ministers in key decisions which affect the operation of the tribunal. Those are, first, the removal of a member of the tribunal; secondly, the making of an order setting out the remedies available from the tribunal; and, thirdly, the making of rules for the tribunal.

Those three aspects are important to the operation of the tribunal. The Scottish Ministers and Parliament have a key interest in the operation of the tribunal and the amendments reflect that interest and give them significant impact into key decisions made. I hope that the amendments are welcome to the Committee. I beg to move.

On Question, amendment agreed to.

Schedule 2, as amended, agreed to.

Clause 59 [Exercise of the Tribunal's jurisdiction]:

Lord Bach moved Amendment No. 198: Page 64, line 47, at end insert — ("(12) The Secretary of State shall consult the Scottish Ministers before making any order under subsection (8); and any such order shall be laid before the Scottish Parliament.").

On Question, amendment agreed to.

Clause 59, as amended, agreed to.

Midnight

Clause 60 [Tribunal procedure]

Lord Bach moved Amendments Nos. 198A to 199: Page 66, line 24, leave out from first ("the") to ("or") in line 25 and insert ("Intelligence Services Commissioner"). Page 66, line 25, after first ("Commissioner") insert (", the Investigatory Powers Commissioner for Northern Ireland"). Page 66, line 25, at end insert ("or Assistant Surveillance Commissioner").

On Question, amendments agreed to.

Clause 60, as amended, agreed to.

Clause 61 [Tribunal rules]:

Lord Bach moved Amendment No. 200: Page 68, line 43, at end insert— ("(12) The Secretary of State shall consult the Scottish Ministers before making any rules under this section; and any rules so made shall be laid before the Scottish Parliament.").

On Question, amendment agreed to.

Clause 61, as amended, agreed to.

Clauses 62 and 63 agreed to.

Clause 64 [Effect of codes of practice]:

Lord Cope of Berkeley moved Amendment No. 200ZA: Page 70, line 8, leave out subsection (2).

The noble Lord said: The Law Society of Scotland drew my attention to this point. The issue is what effect the codes of practice—about which we have heard a good deal and been promised even more—will have if a failure to comply with them will not render a person liable to criminal or civil proceedings. They seem to be rather toothless. I beg to move.

Lord Bassam of Brighton

Our purpose is to draw a clear distinction between the duties imposed by the Bill and those imposed by codes of practice. The Bill sets out fundamental legal obligations, such as the safeguards that must be applied to intercepted material, which are set out in Clauses 14 and 15.

Codes of practice, on the other hand, exist primarily to provide guidance. There is an obligation in Clause 64(1) on any person exercising or performing a relevant power or duty to have regard to the provision of every code of practice in force, in so far as they are applicable.

Many other Acts contain an identical provision, such as Section 101(9) of the Police Act 1997. The issue in that case and this is to strike a balance between ensuring that codes are taken seriously and are not toothless and avoiding a person being penalised for not following the exact letter of a code for reasons such as an operational emergency that the code's author could not have foreseen. The lack of a liability also means that codes can be drafted in plain English, without the need for more complicated legal jargon which affords lots of opportunities to imagine things that the words were never intended to say.

I am sure that the noble Lord appreciates that codes of practice exist to illuminate and illustrate. No doubt he has been involved on many occasions with legislation providing for codes of practice that could be accused of being toothless, but their purpose is to explain matters and make them clear and to enable courts to interpret.

Lord Cope of Berkeley

I am all in favour of plain English and the Minister has said enough to make me want to think about this matter a little further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bach moved Amendments Nos. 200A to 201 B: Page 70, line 18, leave out from first ("Act") to ("or") in line 19. Page 70, line 21, at end insert ("or (e) any Assistant Surveillance Commissioner carrying out any functions of his under section (Assistant Surveillance Commissioners)of this Act,"). Page 70, line 27, leave out from ("the") to end of line 28 and insert ("Intelligence Services Commissioner"). Page 70, line 28, at end insert ("or the Investigatory Powers Commissioner for Northern Ireland").

On Question, amendments agreed to.

Clause 64, as amended, agreed to.

Clause 65 [Conduct in relation to wireless telegraphy]:

Lord Bach moved Amendments Nos. 202 and 203: Page 72, line 18, at end insert— ("(8A) No regulations shall be made under subsection (4)(g) unless a draft of them has first been laid before Parliament and approved by a resolution of each House."). Page 72, line 38, at end insert— ("(4) In section 16(2) of that Act (regulations and orders), after "the said powers" there shall be inserted ", other than one containing regulations a draft of which has been approved for the purposes of section 5(8A),".").

On Question, amendments agreed to.

Clause 65, as amended, agreed to.

Clauses 66 and 67 agreed to.

Lord Bach moved Amendment No. 203A:

After Clause 67, insert the following new clause—