Investigatory Powers Bill

Marquess of Lothian Excerpts

Wednesday 7th September 2016 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords, in moving Amendment 201A I shall speak at the same time to the other proposed new clauses tabled in my name in the group, which have a similar purpose. These proposed new clauses would implement a recommendation of the Intelligence and Security Committee that misuse of the intrusive powers in the Bill should be subject to an adequate penalty. I think that that is a concern that is generally agreed with in the House.

I am aware that before the Summer Recess my noble friend Lord Janvrin moved Amendment 15, which sought to achieve this purpose. It would have done that by creating a single, overarching criminal offence for the misuse of any of the powers in the Bill. In response the noble and learned Lord, Lord Keen, speaking for the Government, argued against that proposed new clause on the grounds that a single overarching offence for the misuse of any of the powers covered by the Bill would not be appropriate since it would be a case of one size fits all.

Of course certain of the activities covered by the Bill have an appropriate offence for their misuse, such as the misuse of the powers of interception and access to communications data. Other activities such as equipment interference are already covered by offences in other legislation such as the Computer Misuse Act 1990. But it is a curious fact that there is a gap in relation to bulk powers, which is the subject we are debating today. Given that these bulk powers have been the cause of such concern in themselves, it is anomalous that the misuse of those powers should not constitute a serious offence and carry a suitably robust penalty. As the Bill stands, the misuse of these bulk powers merely constitutes a relatively minor offence under the Data Protection Act or in some cases it is only an internal disciplinary matter. Neither of those penalties would appear to be appropriate in the case of the misuse of these bulk powers.

It may be argued against these three proposed new clauses that they would have a chilling effect on members of the intelligence agencies, but I draw attention to the drafting, which states that the offence would apply only if:

“A relevant person … without lawful authority, knowingly or recklessly failed to comply with the safeguards”,

set out in the Bill, so this is not something that a member of the intelligence services would stumble into accidentally. In those circumstances, this is not something which need deter or prevent the satisfactory operation of the activities of members of the intelligence services. This would apply where there has been serious, knowing and deliberate misuse of the bulk powers in the Bill. It seems appropriate that in those cases a serious penalty should be applied. With that intention, I beg to move.

[The Marquess of Lothian (Con)]

My Lords, I rise briefly to support the noble Lord, Lord Butler, in these proposed new clauses. As a member of the Intelligence and Security Committee I can confirm that we felt very strongly that there was a gap here which needed to be filled. I am conscious of the fact that the major consideration behind this Bill was to create a balance between privacy on the one side and security on the other. The way we did that was by ensuring that the security aspects were well and properly covered, as indeed they are in terms of the bulk powers in this Bill, but equally that confidence on the privacy side was sufficient for people to accept that where they were misused there would be an adequate penalty against that. But looking at the Bill and the other offences that can be committed and the penalties available for them, in the case of bulk powers, which is what most of the public in the evidence we took in the ISC were concerned about, there seems to be a gap that is covered only by minor results of a criminal offence.

I suggest to the Government and to my noble and learned friend that whether or not he agrees completely with the precise criminal penalties suggested in the amendments, the principle of having a stronger set of criminal provisions relating to these powers should be considered very seriously.

[Lord Rooker]

Perhaps I may put a strictly non-lawyer’s question to the noble Lord, Lord Butler. Who decides where the court action takes place? Bearing in mind that these are slightly different circumstances and given that, as I understand it, a conviction takes place in a court, who decides where the person who has been charged should stand trial? I am not clear on that point. They might say, “I would rather go to Northern Ireland, please, because I would get only six months there”.

--- Later in debate ---

[Lord Keen of Elie]

I do not for a moment accept that it contradicts the argument. The objective is to ensure that we minimise any overlap in the context of such criminal offences.

[The Marquess of Lothian]

In the interests of public confidence, can my noble and learned friend give an indication of what sorts of penalties there would be for the offence of misconduct in public office? It is important that the public know this is being taken seriously.

[Lord Keen of Elie]

The extent of the penalty would depend on the level at which the particular offence was prosecuted. I do not think I can give an absolute answer to that but I would be content to write to the noble Lord to set out the scope for such a prosecution.

Investigatory Powers Bill

Marquess of Lothian Excerpts

Monday 5th September 2016 Lords Chamber

[Lord Janvrin (CB)]

I rise to speak to Amendment 194 in my name. I remind the House of my membership of the Intelligence and Security Committee. Obviously, we support government Amendment 193. Our very small additional amendment suggests that there should be a further subsection which will ensure that the Intelligence and Security Committee has sight of the commissioner’s findings or report, subject to the rules governing the ISC’s access to information under the Justice and Security Act 2013, to which we make reference in the amendment. This seems to us a small but sensible addition to the Government’s amendment.

[The Marquess of Lothian (Con)]

My Lords, I welcome the government amendment and support Amendment 194. I, too, am a member of the Intelligence and Security Committee. Indeed, I have to admit to having been a member of that committee for more than 10 years now.

The Government have tabled a very sensible amendment. There have been times during our investigations when we have come across issues which were really not for the committee to look at in detail but much more for the commissioners. This power for us to refer to the commissioners is a very valuable addition to the way in which we can make sure that the scrutiny of how this legislation works is done fairly and on a broad basis.

I support Amendment 194 because it is the additional element to what the Government are proposing, and makes total sense. For the committee to refer something to the commissioner yet not be able to hear the result of that investigation after it has been carried out does not seem very sensible. Indeed, as many of these issues will arise in the process of the committee investigating rather broader, more strategic interests, while needing to know the result of the commissioner’s investigation, it really would make logical sense to accept the addition made by Amendment 194.

[Lord Paddick (LD)]

My Lords, we, too, very much welcome the Government’s amendment but we also support Amendment 194, for the reasons outlined by noble Lords. Surely, if there is an investigation, the committee deserves to know the result of that investigation as well.