Investigatory Powers Bill

Debate between Lord Butler of Brockwell and Marquess of Lothian

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.