I beg to move amendment 752, in clause 196, page 150, line 43, at end insert

“and under section 217 (technical capability notices)”

With this it will be convenient to discuss amendment 747, in clause 196, page 151, line 19, leave out subsection (4)(a)

The clause provides for oversight functions. The purpose of the amendments—amendment 752 in particular—is to provide for consistent oversight functions.

Under clause 218, obligations to remove electronic protections, which we will come to under part 9, or encryption can be issued either as a national security notice or, more likely, as a technical capability notice by the Secretary of State. As drafted, the Bill does not require judicial authorisation or a test of necessity or proportionality for either a national security notice or a technical capability notice. I argue that the powers are so far-ranging that they should be subject to oversight by the proposed new oversight body. Amendment 752 would make it clear that the commissioners have responsibility for oversight of national security notices and technical capability notices.

Amendment 747 would remove clause 196(4)(a). The Bill provides for the Secretary of State to modify the functions of the Investigatory Powers Commissioner and the judicial commissioners by secondary legislation subject to the affirmative procedure. The amendment would remove that power. I acknowledge that the Joint Committee had every confidence that such a power would only be exercised responsibly by the Secretary of State, but in the light of the commissioner’s important function holding Ministers and public agencies to account, I consider that granting Ministers a delegated power to alter the commissioner’s powers is inappropriate. One way of removing that power would be to leave out subsection (4)(a); another would be to take out clause 205 completely, but we will come to that later.

I rise to speak in favour of clause 196 as drafted and against the amendments. It is an honour to serve under your chairmanship, Mr Owen.

Part 8 and clause 196 cover the oversight functions for the Investigatory Powers Commissioner and the judicial commissioners. Clause 196 sets out the functions of and legal basis for oversight relating to the interception of communications, the acquisition or retention of communications data and secondary data, and equipment interference. That review power includes audit, inspection and investigation of the exercise of the powers; it also relates to the use of data acquired, and taken with subsections (2) and (3) it extends to cover bulk personal datasets, section 216 notices and functions under section 80 of the Serious Crime Act 2015. That constitutes not only wide-ranging powers of oversight, but duties, which means there will be constant watch on how the powers are implemented on the ground, which is vital to ensuring public trust.

As a member of the Joint Committee, with other members of this Committee, I heard evidence from the commissioners. We heard evidence from Sir Mark Waller, who was the Intelligence Services Commissioner. He set out how the powers and functions are carried out. He said:

“I see the agencies taking lawfulness very seriously and by taking authorisations very seriously, and I see the same among Ministers and in departments.”

That powerful and independent view of how these functions are carried out should not be dismissed.

Lord Judge, the chief surveillance commissioner, Clare Ringshaw-Dowle, the chief surveillance inspector, and Sir Stanley Burnton, the Interception of Communications Commissioner, all gave very powerful evidence. Lord Judge set out in detail the authorisation inherent in the role, as well as the detail behind the review. He described to the Joint Committee the audit function in the following way:

“Speaking only for my own team, every authorisation is made before any…intrusion takes place. The papers come to us… A judge commissioner looks at them. He decides whether necessity is established and whether it is proportionate, which involves looking at the nature of the offence. You would not authorise intrusive surveillance for somebody who was stealing a tin of salmon from a supermarket. You are looking at sentences starting in the three to four-year range and upwards. He checks for proportionality: is this a reasonable way to go about sorting this problem out? He authorises or does not, or says, ‘I want more information’. Then the process goes through.

“At the other end of the process, every year my inspectors go in and conduct an inspection of every single police force in the country, Her Majesty’s Revenue & Customs and so on—all the law enforcement bodies. They conduct random analyses inspections of all the things for which the body is responsible, such as encryption. There are all sorts of different things that come under the…surveillance. They then write a report. The report is written to me. It goes to the chief constable. I write my own report to the chief constable. Sometimes I say, ‘This is being…well handled. Your authorising officers are well trained. The paperwork is very good. The explanations are excellent’, and so on and so forth. I have just written a very rude letter saying, ‘This is not good enough. You are not complying. There are too many breaches. There is too much inefficiency in this part or that part’, or whatever it is.”

Sir Stanley Burnton said:

“We carry out an audit function…you cannot carry out an audit function properly unless you have some understanding of the business you are auditing.”

I believe that we have clear evidence of the challenge, the independence, the high level of scrutiny that our judiciary currently applies and that is indeed protected and expanded in the Bill. We have been given an insight into how the professionals grapple with the conflicts and issues, which is all welcome. The judgment made in looking at the tension between privacy and security was set out by Lord Judge.

“This is what, if you are a former judge, you have been doing for however many years you have been doing it. You have been making decisions like this day in, day out. The questions are very simple: is this necessary? Where is the evidence? Yes, on this evidence, it is necessary. Is this proportionate? I must bear this in mind and that in mind, and that in mind. On this evidence, that is proportionate. Hang on, there is a bit of this that might involve the suspect having had conversations with his…doctor. You have to be careful there. I mentioned earlier an intrusive surveillance into the family car that is being driven by the wife. Nobody suspects her of anything, so you cannot have that; it is not proportionate… You are making a judicial judgment, which is what you have spent your whole career doing.”

There we have a clear indication of the independence and the challenge. That is why I support the clause, which sets out and preserves the challenge and those oversight functions. The amendments go too far and would allow the judiciary to encroach too much into the realm of Executive decision making. To remove important considerations, such as those the later amendments would remove, would weaken the fair balance that is currently struck between security and privacy.

There is ample evidence that the oversight functions reflect the theme of scrutiny, accountability and safeguards that runs through the Bill. Notwithstanding the fact that some things will need to remain secret, without any impartial challenge the system will be opaque and its robustness weakened. I welcome clause 196, the improvement of the role of the commissioner, and the oversight functions in the Bill.

I can add little to the contribution of my hon. Friend, who has articulated these things better than I could. Nevertheless, I should emphasise two points. The hon. and learned Member for Edinburgh South West is right to say that the clause provides for IPC oversight of technical capability notices in subsection (1), and it lists the main oversight functions that should be undertaken. I accept that she is making quite a refined case, but my argument is that the clause already provides the oversight she seeks, because the notices are

“of statutory functions relating to” the activities. That is a wide-ranging role for the commissioner, with absolutely proper capacity to probe, thorough oversight of public authorities, the necessary powers and an expansive remit to consider all such matters.

Amendment 747 would give the commissioner the function of keeping under review, including by way of audit, inspection and investigation, the exercise of the functions by Ministers. I am still less persuaded of that. It is a less refined and pretty basic argument about the relative functions of the Executive and the commissioner. I do not want to lecture the Committee on the importance of the separation of powers—we have already had an interesting discussion about that—but it is absolutely right that the process of scrutiny and review should be carried out by the legislature, as my hon. Friend the Member for Fareham implied. By the way, that includes the Scottish Parliament, which will of course have a role, alongside the Welsh and Northern Irish Assemblies. I consider that role to be of the utmost importance, and I would not want in any way to limit or inhibit the capacity for reflection and review with such an amendment.

As well as all that, we doubt that the amendment would provide for appropriate allocation of the skill and resources of the commissioner, whose key function is to provide oversight of the powers as defined in the Bill. I can see what the hon. and learned Lady is getting at—as I say, her amendments are at least in part an attempt to refine what is before us—but I do not feel that I am any more persuaded of their virtue than is my hon. Friend. On that basis, I invite her to withdraw the amendment.

To clarify, we are currently dealing just with amendments 752 and 747; I have not yet made my submissions on the other amendments. I am not prepared to withdraw the amendments and would like to press them to a Division.

Question put, That the amendment be made.

The Committee divided:

Ayes 7, Noes 10.

Question accordingly negatived.

Amendment proposed: 747, in clause 196, page 151, line 19, leave out subsection (4)(a)—(Joanna Cherry.)

Question put, That the amendment be made.

The Committee divided:

Ayes 7, Noes 10.

Question accordingly negatived.

I beg to move amendment 748, in clause 196, page 151, line 42, leave out from “must” to end of line 44 and insert

“have due regard to the public interest in avoiding acts prejudicial to”.

With this it will be convenient to discuss the following:

Amendment 750, in clause 196, page 151, line 47, leave out subsection (c) and insert—

“(c) privacy and the integrity of personal data; and

(d) the security and integrity of communications systems and networks.”

Amendment 751, in clause 196, page 151, line 48, leave out subsections (6) and (7).

The hon. Member for Fareham and the Minister have already anticipated what I am going to say in support of the amendments, so I will try to be brief. The Bill requires the Investigatory Powers Commissioner and the other judicial commissioners to prioritise

“national security, the prevention or detection of serious crime…the economic well-being of the United Kingdom” above all other considerations in the exercise of their functions. It also imposes a particular duty not to

“jeopardise the success of an intelligence or security operation or a law enforcement operation…or unduly impede the operational effectiveness of an intelligence service, a police force…or Her Majesty’s forces.”

The amendments would create a “due regard” duty for judicial commissioners to exercise their functions in a manner that considers the range of important public interests that their oversight function is designed to preserve, including the protection of individual privacy,

“the integrity of personal data; and the security and integrity of communications systems and networks.”

Amendment 750 is consistent with other amendments in that it would remove the reference to

“the economic well-being of the United Kingdom.”

Amendment 751 would remove the exceptionally broad particular duty to refrain from impeding the work of the agencies, the police or the armed forces.

We have already had lengthy submissions on the issue of the economic wellbeing of the United Kingdom. On the “due regard” issue, the response from the hon. Member for Fareham and the Minister was that clause 196 is adequate as it stands, because we have heard evidence from a number of people involved in the system that everything is done properly and above board.

In these Houses yesterday, as a result of the second inquest into the Hillsborough tragedy, we had a classic example of it coming to light that the establishment and the state had not performed their duties properly. Sometimes the state and the establishment do not perform their duties properly; sometimes things that are not specifically laid down are not done properly. To take the Hillsborough example, until we had article 2 of the European convention on human rights and the particular duty to involve the family and next of kin in inquests, we would not have had what the Home Secretary read out to us yesterday, the detailed questions for the jury and the detailed answers that the jury members had to give. They were the result of a specific requirement to involve and respect the wishes of the next of kin, and of duties under article 2.

We should put into the Bill the requirement for the commissioners to have due regard to the protection of individual privacy, the integrity of personal data, and the security and integrity of communications systems and networks. There is a risk that, notwithstanding the fact that we are told the commissioners are performing their functions while taking such issues into account, they would not do so in future unless specifically mandated to do so. What possible harm can there be in spelling out that there should be due regard to those matters? If the commissioners are already taking them into account, what harm is there in spelling them out? It would certainly ensure that they would not fail to take them into regard in future.

The House has the opportunity to debate a Bill that seeks to put all the powers and safeguards on a comprehensive statutory footing, so why not take the opportunity to spell out the protection of the individual privacy and integrity of the personal data of our constituents, and the security and integrity of the communications systems and networks that serve our constituents? What possible harm can there be in spelling that out? The downside of not doing so is that it is possible in future that it will be overlooked. If the Government are opposing the amendment, I want to hear from them what possible harm it can do to spell the duty out?

Disraeli said that a precedent embalms a principle, and the amendment is certainly not unprecedented, since we are once again considering the issue of economic wellbeing, as we have done with some frequency. Familiarity is almost always desirable, but I am not sure that the same can be said of repetition, which can often lead to tedium, so I will not repeat the argument about that. Let me therefore deal with the other amendments.

Amendment 748 has a probably unintended consequence. At the moment, judicial commissioners must—I use that word advisedly—not act in a way that they consider prejudicial to the public interest. The amendment, perversely, reduces that, so that they should have “due regard” to the public interest. It is a weakening of the public interest. I am not sure that that was the intention, but it is certainly the consequence of the amendment, which can be dismissed accordingly.

That leaves me with the point that the hon. and learned Lady made about privacy and the integrity of personal data. Proust said—he was speaking of prejudices, but this could be applied here—that at their “moment of novelty…fashion” lends things a “fragile grace.” On first acquaintance the amendment has such grace, but on closer examination the fragility becomes evident, because this is not by any means the best place in the Bill to advance that defence of privacy. A better argument, championed by the hon. and learned Member for Holborn and St Pancras, but supported by the hon. and learned Lady, would be to consider privacy at the early part of the Bill, which might then have ramifications for the whole of the rest of the Bill if an appropriate clause were constructed.

I have argued that privacy runs through the Bill and that it is an intrinsic part of the connection—the harmonious union that we seek to create in this legislation—between defence of personal interest and the capabilities of those missioned to keep us safe. The hon. and learned Gentleman put the case, right at the outset, that there was an argument for something more fundamental, which explained that relationship more explicitly through some clause. I put it to the hon. and learned Lady that that would be a much better place.

rose—

I will give way to the hon. and learned Gentleman, because I have cited him and courtesy obliges me to give way.

I am grateful to the Minister for giving way. I remind the Committee that the way I saw it was that there should be some overarching clause that would apply throughout the Bill, and thus to this clause and all others.

That is exactly the point I was making. Again, I have no doubts about the hon. and learned Lady’s noble intentions, but I do not think that this is a good place to do what she seeks to do.

I can reassure the Minister that the SNP and the Labour party are jointly working at present to produce an amendment later today with an overarching privacy clause for the Bill, which would be a new clause to be debated next week. However, I have to say that, given the Government’s attitude to date in relation to most of the amendments that we have tabled, I have no confidence that that new clause will be accepted, so I intend to push press this amendment to a Division.

I am a little hurt, frankly. I regard the caricature that the hon. and learned Lady has painted of my approach to all of these considerations as—I would not say insulting—hurtful. Far from the stony-faced zealot that I think she seeks to portray me as, I am the very model of this listening Government.

The Minister demonstrates a listening Government in action by giving way to me and I am extremely grateful to him for doing so. With regard to clause 196(6), which would be removed by the amendment, Sir Stanley Burnton, the expert witness, said:

“We wonder what the function of clause 196(6) is. It is either telling a judge the obvious or it is a big stick to wave at the judge, to say, ‘You have to approve this because if you don’t, you’ll be jeopardising the success of an intelligence operation.’”––[Official Report, Investigatory Powers Public Bill Committee, 24 March 2016; c. 74.]

Would the Minister care to comment on that point?

Now the Committee is getting exciting; it often happens, as one gets deep into consideration. I must say that the hon. Gentleman—unsurprisingly, given his reputation, but in a most welcome way—has illustrated a diligence in the consideration of the detail of this measure, which does him great credit.

However, having been nice about the hon. Gentleman, now let me be less nice. The hon. and learned Lady wants to weaken public interest; he wants to take out a whole chunk of the Bill—

The witness did.

Order.

The hon. Gentleman wants to take out a part of the Bill that says that, in the exercise of their function, the judicial commissioner should not

“compromise the safety or security of those involved”.

Well, of course they should not “compromise the safety” of security personnel. The hon. Gentleman may say that that is self-evident, but, my goodness, if we took out everything that was self-evident we would have a Bill half as long as it is. The self-evident is sometimes an important part of guaranteeing all those things that we might, with good will, take for granted. That is the very nature of legislation, as the Solicitor General knows very well indeed.

I am grateful to my right hon. Friend. I take on board what the hon. Member for Hove said, but we are talking about the oversight function. I reassure him that it is not about the exercise of the judicial discretion in approving warrants. It is about the oversight part, and I hope that reassures him.

I may have been judging the hon. Member for Hove harshly. If the Solicitor General is right that that is the misapprehension, I understand why the hon. Gentleman is making the case he is making. It is essential that we clearly set out the expectations for the exercise of the oversight function, as the Bill does.

Returning to the issue of common sense and what is self-evident, I say to the hon. Gentleman for at least the third time, and possibly the fourth, that there is always debate about how much is on the face of a Bill and how much is reserved either for the common sense of those who do what the Bill asks of them or for the supporting documentation, guidance and so on. We have had that debate a number of times. It is often important that what might appear as “self-evident” or common sense is placed on the face of the Bill, as the hon. and learned Member for Holborn and St Pancras has repeatedly asked me to do.

I simply remind the Committee that what my hon. Friend the Member for Hove said was, “This is what Sir Stanley said, would you care to comment on it?” In fairness, there is no criticism of the Minister in any of this. My hon. Friend is simply saying, “This is the witness’s evidence. What do you make of it?”

I was, by proxy, making that clear, and I will leave it at that.

Will the Minister give way?

I know the hon. and learned Lady is anxious to get to lunch, and I do not want to delay her any further. She may have been about to say that.

The hon. Member for Hove quoted exactly what the witness said. The Solicitor General is trying to say that the witness was mistaken, because the clause only pertains to oversight functions and not judicial functions, but does that not illustrate the very difficulty of having the judicial and oversight functions mixed up together? Subsection (5) states:

“In exercising functions under this Act”.

It does not say, “In exercising oversight functions”.

I am going to sit down and suggest that the hon. and learned Lady either withdraws the amendment or allows us to oppose it. It will allow her to have that slightly broader conversation with the Solicitor General over their exciting lunch.

I wish to insist on the amendments.

Question put, That the amendment be made.

The Committee divided:

Ayes 7, Noes 10.

Question accordingly negatived.

Amendment proposed: 750, in clause 196, page 151, line 47, leave out subsection (c) and insert—

“(c) privacy and the integrity of personal data; and

(d) the security and integrity of communications systems and networks.”.—

Question put, That the amendment be made.

The Committee divided:

Ayes 7, Noes 10.

Question accordingly negatived.

Amendment proposed: 751, in clause 196,page 151, line 48, leave out subsections (6) and (7).—(Joanna Cherry.)

Question put, That the amendment be made.

The Committee divided:

Ayes 7, Noes 10.

Question accordingly negatived.

Clause 196 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Simon Kirby.)

Adjourned till this day at Two o’clock.