Investigatory Powers Bill — House of Lords, 2016-09-05
Topic: Law and Crime
Frederick Richard Penn Curzon (Conservative, Centre-right): My Lords, let me turn first to Amendments 194CA and 194CB in the names of the noble Lord, Lord Rosser, and the noble Baroness, Lady Hayter, which deal with Clause 214 Clause 214 allows a Secretary of State to modify the functions of the Investigatory Powers Commissioner or other judicial commissioners. This will allow the functions of the judicial commissioners to be extended, but also to be changed to reflect any potential changes to the investigatory powers that the commissioners oversee. The judicial commissioners will oversee the use of a wide range of powers, including some in other enactments. Those powers may in due course be changed or updated, perhaps in the same way that this Bill is replacing parts of RIPA. In such a case, it is right that the functions of the judicial commissioners could be modified to reflect the changes. However, this may not mean an extension of the judicial commissioners’ oversight. The change may be entirely neutral—for example, a public authority changing its name or something of that sort. If these amendments were accepted, such a sensible change would not be possible I hope I can reassure noble Lords that this power will not be used to reduce the oversight provided by the commissioners. The Government have been very clear on this point. It is also worth reminding the Committee that this power is subject to the affirmative procedure and that Parliament will have to approve any regulations made under this clause. So any attempt to diminish the commissioner’s oversight responsibilities, were such an attempt to be made, would no doubt be scrutinised extremely carefully by each House of Parliament, particularly in the light of the assurance that I have just given The Committee will recall that the Delegated Powers and Regulatory Reform Committee expressed a concern about the breadth of the order-making power, as was made clear by noble Lords. It recommended that it should not extend to the IPC’s functions relating to the authorisation of warrants. The Government accepted this recommendation, and this clause has been amended accordingly Amendments 194CC, 194CD and 194CE deal with changes to Schedule 7. Amendment 194CC would require the Secretary of State to consult persons interested in a code of practice before issuing such a code. This amendment is unnecessary as the clause as drafted provides for the publication of codes in draft and for the Secretary of State to consider representations on the draft codes. In order for the Secretary of State to hear representations on the code, the Bill requires a consultation to be conducted I understand that Amendments 194CD and 194CE are intended to probe whether the use of "have regard to" or "take into account" strengthens or weakens the effect of the consideration of a failure to comply with a code conducted by a supervisory authority or a court or tribunal. Having taken advice on the matter, I can assure your Lordships that the choice of language is based on the context and it is appropriate to refer to a court or an oversight body taking matters into account. However, that form of words does not provide any greater or lesser degree of consideration Amendments 238A, 238B, 240A, 240B and 242A I believe respond to the recommendations made by the Delegated Powers and Regulatory Reform Committee in its report on this Bill of 8 July 2016. These amendments relate to the parliamentary procedure used where primary legislation is modified and to the power to make consequential amendments not being time-limited in relation to Clause 242(2) and Clause 242(3) The proposed amendments to Clause 238 seek to ensure that whenever a delegated legislative power is used to modify primary legislation the affirmative procedure should apply. This is a point which has been raised by the committee in the context of a number of Bills, and I am afraid that it is one that the Government cannot accept. Where secondary legislation amends the text of primary legislation, the Government agree that such legislation should be subject to the affirmative procedure. The Government have committed that, wherever possible, changes to primary legislation will be made by textual amendment rather than by modifying the primary legislation. There are likely to be relatively few occasions when the powers to otherwise modify primary legislation need to be exercised—I apologise for the split infinitive which the noble Baroness pointed out. However, it remains the Government’s position that there are some cases where it is necessary to modify primary legislation and that it is not possible to specify which kinds of modification of primary legislation should attract the negative procedure and which the affirmative procedure without creating legal uncertainty The Government have set out their position in the Delegated Powers Committee memorandum on this Bill, and in relation to a number of different Bills, and remain of the view that the position is justified and that the powers in the Bill are subject to the appropriate level of parliamentary scrutiny. I have in fact today written to my noble friend Lady Fookes, the chair of the Delegated Powers and Regulatory Reform Committee, setting out the Government’s position and the reasons for it in response to the committee’s view on this issue and on the point raised by the committee on the power to amend Schedule 8. I will, of course, place a copy of that letter in the Library of the House. I therefore ask that these amendments be withdrawn The proposed amendment to Clause 242 seeks to constrain the power to make consequential amendments so that it could not be used to amend legislation passed after this Bill receives Royal Assent. Clause 242 contains the usual power to make amendments to other legislation consequential on the provisions in the Bill. However, as currently drafted, the power would permit the amendment of legislation passed at any time in the future. Amendment 242A would in fact go further than the committee’s recommendation, which recognised the necessity of amending of enactments passed or made during the current Session. I can confirm that the Government will bring forward amendments on Report which would restrict the powers conferred by Clause 242 and the similar power in Schedule 8 to the Bill in response to the committee’s recommendation The power to make consequential amendments to enactments passed in the same Session is necessary because other Bills before Parliament at the same time as this Bill touch upon the powers and public authorities covered by this Bill, such as, for example, the Policing and Crime Bill. Since it is impossible to predict how those Bills or the Investigatory Powers Bill may be amended during their parliamentary passage, and which Bill may achieve Royal Assent first, it is necessary to allow for the possibility of consequential amendment of future enactments I have just been handed a note to amplify what I said on Amendment 194CC in relation to consultation on codes of practice, and will just add that consultation comprises publication of a draft and consideration of any representations made. I suggest to the noble Baroness that publication, by its nature, is conspicuous and is the means by which government consultations are established. I hope she is satisfied on that point Finally, government Amendment 241, which is in this group, makes it clear that a statutory instrument containing regulations made under Clause 50(3)—the designation of relevant international agreements under which interception may be carried out—is subject to the negative parliamentary procedure. This amendment is consequential on the amendment to Part 2 which was considered in July. I hope that the House will agree to that amendment when I come to move it.