LORDS

Investigatory Powers Bill constitutional implications assessed by Committee

11 July 2016

The Constitution Committee today publishes a report on the Investigatory Powers Bill, focussing on the creation of Judicial Commissioners. The Committee stresses the importance of both judicial independence and the appearance of independence and make recommendations for protecting both.

Concerns on Judicial appointments

The Committee is concerned that the Bill gives too great a role to the Prime Minister in the appointment of individuals fulfilling the judicial function.

The Committee endorses the recommendation of the Joint Committee that scrutinised the Bill in draft: that the Lord Chief Justice should appoint Judicial Commissioners, subject to consultation with his counterparts in Scotland and Northern Ireland and with the Prime Minister and his counterparts in the devolved administrations.

The Committee also calls for the Prime Minister to play no substantive part in the reappointment (after three years in post) and dismissal of Judicial Commissioners, and for the Lord Chief Justice instead to take the lead in relation to such matters.

Altering functions of the Judicial Commissioners

The Bill allows the Government, using secondary legislation, to alter the functions of the Judicial Commissioners in relation to their oversight role.

The Committee is concerned that this gives the Government power to weaken an oversight regime of which it was the subject. It recommends that the power is restricted to extending and augmenting the Commissioners’ oversight functions, so that those functions are able to keep up with technological or other developments.

Right of appeal

The Bill introduces a right of appeal to the Court of Appeal against decisions of the Investigatory Powers Tribunal.

The Committee concludes that this changes the Tribunal’s status, making it unequivocally an independent tribunal and part of the justice system.

The Committee highlights issues arising from this change relating to the setting of the Tribunal’s rules and the implications for disclosure of evidence by the Tribunal and, on appeal against the Tribunal’s decisions, by the Court of Appeal.

The Committees stage of the bill is due to start today on 11 July.

Parts 6 and 7 of the Bill

The Report does not address Parts 6 and 7 of the Bill, concerning the interception and collection of “bulk” data. The Committee will scrutinise these Parts when they come before the House following the review of the operational case for bulk powers by the Independent Reviewer of Terrorism Legislation.

Further information

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