My Lords, in moving Amendment 57, I will also speak to Amendment 74.
These two probing amendments are designed to explore how the Government plan to use their regulatory powers in the Bill. I am informed on this because I am the chairman of the Secondary Legislation Scrutiny Committee of your Lordships’ House. Along with the Delegated Powers and Regulatory Reform Committee—chaired by my noble friend Lord Blencathra—my committee has been concerned by the increasing use of skeleton Bills, where only the broadest frameworks are set out in primary legislation and all the practical details are left to regulation.
As a result, Parliament too often has only a general idea of what it may be approving when it passes the primary legislation. The Government may—they probably will—argue that all regulations have to be approved by Parliament, but Members of your Lordships’ House are well aware of the weakness of the scrutiny of regulations, which is that they are unamendable. The House is left with only what I call the nuclear option of complete rejection. Unsurprisingly, in these circumstances, neither House has felt able to press the button, except in the most exceptional circumstances.
Our two committees—my noble friend Lord Blencathra’s and mine—have written to Jacob Rees-Mogg, as Lord President of the Council and Leader of the House of Commons, to express our concern and make suggestions for improvement. Let me take an example from earlier debates in Committee. My noble friend the Minister and other noble Lords—notably my noble friend Lord King and the noble Lord, Lord Carlile of Berriew—referred Members to the revised code of practice as providing a
reassurance against bad behaviour in the operation of CCAs. Indeed, the noble Lord, Lord Carlile, urged every Member of the Committee to read through the code. I followed the noble Lord’s advice and read it, all 73 pages of it. I agree that, at least to my untutored and inexperienced eye, it appears extensive and comprehensive, but its weakness is that it is made by regulation—in this case, Section 71 of the Regulation of Investigatory Powers Act 2000. So its contents depend on ministerial policy decisions and can be changed, at any time, by the tabling of an unamendable regulation.
I do not doubt for a moment the good intentions of my noble friends on the Front Bench, nor the good intentions of the Front Benches of the other parties in this House or the other place, but none of them will be in their seat for ever. Amendment 57 is designed to explore the risk of what I described in my remarks at Second Reading as “mission creep”, or, more specifically, how wide the room for manoeuvre is for a future Secretary of State using the powers available under Clause 1(5)(10) on page 3 of the Bill.
I pose three simple questions for my noble friend the Minister to answer when he replies. First, can the Secretary of State, under this clause, add to or remove bodies from the list of relevant authorities given on page 4 of the Bill? Secondly, is there any limit to the changes that the Secretary of State may make, under this clause, to the authorisation levels for CCAs, given in annexes A and B of the draft revised code of practice? This issue has been raised on a number of occasions, notably by the noble Lord, Lord Anderson of Ipswich. Thirdly, is there any limit to the changes that the Secretary of State may make to the purposes for which a CCA is sought? That was a discussion on Amendment 22. In particular, what is meant by “impose requirements” in line 13? That issue was raised by the noble Baroness, Lady Hamwee.
Before I finish, I turn briefly to Amendment 74. This poses the same questions for Scotland as Amendment 57 does for the rest of the United Kingdom, but there is one additional point of concern: whether, as a result of two systems existing, what is known as forum shopping can take place. Historically, in cases involving extradition, prosecuting authorities were in the habit of surveying the legal options open to them and picking the route, courts and jurisdiction that, on past experience and record, were most likely to give them a favourable result. As I see it, the two CHIS systems begin in identical form but, over time, can and probably must be expected to diverge. How far that will be is impossible to predict now, but the possibility of forum shopping emerges. Can my noble friend comment on the interchangeability of CCAs granted under Scottish law being used in the rest of the United Kingdom, and vice versa? I beg to move Amendment 57.