Investigatory Powers Bill — House of Lords, 2016-10-11
Topic: Mixed Topics
Sally Rachel Hamwee (Liberal Democrats, Centre to centre-left): My Lords, I hesitated because I thought the Minister might wish to introduce the government amendments before I spoke to mine, as I think one of mine may be an amendment to one of his. We on these Benches support the noble Lord, Lord Janvrin, on Amendment 1. It would provide a very clear statement of purpose for the Bill, and one which would be very useful. The Lord Advocate said in Committee that an amendment similar to this would not add value. On the contrary, it would add value by giving that statement of purpose. The first clause is badged as an overview of the Act. In fact, what it does is to list the different parts of the Act and give an overview of each of them. The clause does not give an overview of the Act; the noble Lord’s amendment would do so, and the clause would live up to its name We have Amendments 8, 9 and 12 in this group. Amendment 8 would provide that the powers should not be used if the objectives could be achieved by other, less intrusive means. This, too, was an amendment that we debated in Committee. The Bill provides that regard must be had to the possibility of achievement by other, less intrusive means. My noble friend Lord Lester of Herne Hill apologises that he cannot be here today—although I am not sure whether one should apologise for an illness. He has kept me up to date with his position. He talked about the "rubbery" quality of the term "have regard to". This amendment would make the obligation an absolute one—but not an unreasonable one, because the term "reasonably", as in, "could reasonably be achieved by other less intrusive means", is included. My noble friend Lord Lester referred to this as, "classic principle of proportionality language".—[Official Report, 11/7/16; col. 53.] I was pleased that, on that occasion, we had the support of my noble friend Lord Carlile of Berriew, who said that the wording, "would be more useful and more certain", than that with which he was comparing it, and that, above all, it would, "avoid unnecessary disputes about the meaning of and compliance with Article 8"— that is, Article 8 of the convention— "in the courts".—[Official Report, 11/7/16; col. 54.] My noble friend Lord Lester had painted a rather gloomy picture of the problems that could arise if the legislation was not absolutely clear The noble Earl agreed to consider the proposition. He referred to the use of the wording in codes of practice. My noble friend Lord Carlile, who was more polite than I was about problems with codes of practice, said that he supported the amendment because it would be preferable to have the words in the Bill, "rather than face the inevitable consequences of legal discussions in the courts as to the role of codes of practice and their enforceability? Putting the words in the Bill at least provides certainty".—[Official Report, 11/7/16; col. 56.] Both my noble friends have very considerable experience of arguing the case—no doubt both ways—in the courts. I am not sure whether the Government’s Amendments 10 and 11 are intended to address the point that we were debating. I am sure I will be told Our other amendment, which I will have to speak to now because we are on Report, is an amendment to government Amendment 11. I welcome government Amendments 10 and 11, but I am a bit uneasy about intrusiveness being gauged against the sensitivity of the information. My point is a wider one: everyone in every case should expect the least intrusive means to be tried first. Amendment 12 to government Amendment 11 is tabled to understand whether everything in Amendment 11 falls within Amendment 10. We have wording in Amendment 10 about the "particular sensitivity" of information. Amendment 11 gives examples of "sensitive" information. Are there, therefore, two hurdles to be crossed: "sensitive" and "particular sensitivity"? Amendment 12 seeks to understand how the two amendments relate to one another.