Counter-Terrorism and Security Bill — House of Lords, 2015-01-28
Topic: Law and Crime
Angela Smith (Labour, Centre-left): My Lords, I will also speak to Amendments 118H and 118J. I welcome the Minister’s statement in relation to the previous debate on the amendment of the noble Lord, Lord Pannick. I hope that that will be reflected in his comments on this group of amendments, which also impact on the work of the independent reviewer and the Government’s proposals for a Privacy and Civil Liberties Board One reason that I brought forward these amendments is to get some concrete proposals to try to improve this part of the Bill, but I also want to understand the thinking behind the Government’s proposals and how they expect them to work in practice. This was first announced in July, when the Government brought forward the DRIPA Bill. When that was debated, there were no details on the board other than what it was to be called. My understanding is that, since then, there has been considerable debate within the Government about what the role, remit and make-up of the board will be. The original proposal, that it should replace the independent reviewer, has wisely been dropped. However, on 17 December last year, the Government launched their public consultation on establishing a board—another consultation, which does not end until tomorrow. Will that report be available when we discuss this issue on Report The Government said that purpose of the Privacy and Civil Liberties Board was to support the work of the independent reviewer of counterterrorism, but the how, why, where and who of what will happen is where the lack of clarity remains. What is clear is that both inside and outside your Lordships’ House the whole role of the independent reviewer attracts enormous respect and credibility regarding the way in which he undertakes his work. We extend those comments to the previous holder of that position. However, that is not to say that the work could not be improved or enhanced In the previous debate, the noble Lords, Lord Carlile and Lord Pannick, commented on the recommendations made by the independent reviewer on how he could better undertake his work. He provided suggestions in his report on the operation of the terrorism legislation in 2013. He repeated those points in evidence to the parliamentary committee. His comments on how he thinks he can enhance and improve the role of the independent reviewer seem thoughtful and worthy of serious consideration by the Government While I therefore agree with the Government and welcome their direction of thought on examining ways in which that role could be supported and enhanced, the Government need to provide more detail and a convincing case for why the establishment of the new Privacy and Civil Liberties Board is the right way forward. The impact assessment produced by the Government, which was published after the independent reviewer’s recommendations were published, makes it clear that the Government did not consider any of those recommendations when deciding to proceed with a new board. The policy options that were considered, including any alternatives to regulation, were: "Option 1—do not establish a privacy and civil liberties board", and, "Option 2—legislate to provide … a Privacy and Civil Liberties Board" The options suggested by the independent reviewer of how to improve his work included having a junior counsel work with him who was security cleared, but that was not even considered when the Government brought forward their proposal for such a board. That is disappointing and perhaps the Minister can say why. I am not saying that he should automatically take on board and accept anything that the independent reviewer says that he wants, but those issues should have been considered in the round when looking to improve and enhance the work of the independent reviewer. The question of whether to have a board and the options that he put forward should all have been considered together The consultation produced by the Government on establishing such a board quotes the independent reviewer. While admitting that the independent reviewer thinks that a board would be best served by an individual operating part-time, the consultation quotes him as saying that, "a board, if properly constituted, could bring advantages" Although that quote is correct, it is shame that it is not presented in its proper context in the consultation document. He said that in the context of the Government’s proposal, as it was then, to replace the independent reviewer with a new board. In the rest of the quote, which the Government did not put in their consultation document, he said: "In short, such a Board if properly constituted could bring advantages: but"— this is the bit missing from the consultation document— "the wrong decisions could substantially diminish the value that is offered by the current arrangements, particularly if there were any reluctance to share classified information with a larger and more varied group. If the proposal is progressed, I would suggest that it requires the most careful scrutiny" It is disappointing that that comment was not included in the consultation document in the interests of completeness. I therefore ask the Minister: does he consider that the representation of the independent reviewer’s opinion in the consultation document is entirely and wholly accurate and in context? Does he consider that this enabling power, which is what Clause 36 is, provides the adequate scrutiny that the independent reviewer suggested Some of the background to our amendment is to ascertain exactly what is required of the board. As I say, the clause is essentially an enabling power for the Secretary of State. It could be a very broad power in determining and deciding the role and functions of the board, the salaries of the board and the administrative support it needs—which, if you look at the impact assessment, you will see is quite a sizeable bureaucracy in the age of austerity.