Investigatory Powers Bill

Lord Carlile of Berriew Excerpts

Report: 2nd sitting (Hansard - part one): House of Lords
Monday 17th October 2016 Lords Chamber

This is not restricted, as with most other intrusive powers, to only the security services or cases of serious crime. Even the Food Standards Agency could access it. Of course, if there was a fully worked-up proposal with a proper operational case for such provision, and with clear reassurances about how it would operate and how data would be safeguarded, noble Lords could make an informed decision on whether a request filter was necessary and proportionate, but there is not, and so we cannot. It is simply a vague idea of something that might be useful, for which a one-sided and I believe misleading case has been put forward by the Government. I beg to move.

[Lord Carlile of Berriew (LD)]

My Lords, I regret that I cannot support my noble friends’ attempts to remove these clauses from the Bill. I say with great respect to them that it is a misconceived attempt and displays a misunderstanding of what the authorities do, have done and can do. In my judgment, for what it is worth, the removal of these clauses would reduce the capacity of the authorities legitimately to interdict what could be extremely serious crime and catch those guilty of it.

We have heard terms such as “limitless”, “monster” and “unfettered”. At the risk of repeating what has been said earlier on Report, it is grossly exaggerated to suggest that unfettered, monstrous or limitless power is being given to the authorities. There can never have been a Bill on subjects such as these that has had so many fetters on the authorities and that has placed so many limits on what they can do. Indeed, if it has created a monster at all, it is a monster of regulation, not of unregulated activity.

I saw a briefing on these amendments earlier today. They are founded on the proposition that the authorities—the police and the security services—have the time to go on fishing expeditions. If that is what is being said, I can think of at least two kinds of fishing expedition. One is the sort of fishing expedition where you stick a worm on the end of a line and dangle it into water not believing that there is anything in there, and the other involves casting a sprat to catch a mackerel. If there is a fishing expedition here, it is the kind in which the authorities would know that there is very likely to be a mackerel beneath the water into which they cast their well-fattened sprat.

These amendments would inhibit current practice in the courts and in investigations. I can think of two murder cases in which I appeared as leading counsel—one as a prosecutor, the other as a defender—in which a conviction resulted from exactly the kind of activity being permitted in the Bill. In each case, it is certainly possible—I do not want to exaggerate—that there would have been no conviction if not for the availability of this kind of activity. At the time of each of those cases, the activity was nothing like as well-controlled or scrutinised as is proposed in the Bill. The sort of activity that I am describing can and has been used to catch murderers, paedophiles and money launderers as well as terrorists. It is a necessary tool of a responsible state.

The issue is whether the Bill allows this information to be obtained in a responsible way by the state. I believe the Government have gone a very long way to ensure that everybody can be confident that in future such material will be obtained by a responsible state and that these clauses are a necessary part of that activity.

[Lord Strasburger (LD)]

My Lords, I rise to speak to Amendments 100C, 100D and 100E which have been very ably explained by my noble friend Lord Paddick.

When vague and non-specific legislation comes before us, it is perhaps because its authors are unable to be more precise because they have not thought it through or because they choose to not share the details with us. Whichever reason applies in the case of the request filter, there is no doubt that Clauses 64, 65 and 66 are notable more for what they do not say than for what they do. Despite the best efforts of both the Joint Committees on which I had the privilege of sitting—the one on this Bill and the one that examined the draft Communications Data Bill in 2012, in which the request filter first appeared—we are none the wiser about the request filter architecture, how it will work, who will develop it and who will operate it.

We have only to look at an obscure section in an elderly piece of legislation—the Telecommunications Act 1984—to see how overbroad drafting can lead to unintended consequences. Years ago, Section 94 of that Act was used by the Home Office secretly to create a brand new, highly intrusive power—namely, bulk acquisition of communications data—which the Government, to their credit, are now bringing in from the cold in this Bill. For a long time, however, the existence and use of this power carried on without the approval, or even the knowledge, of Parliament. Quite by chance, just a few hours ago, the Investigatory Powers Tribunal ruled that this very powerful secret power of bulk acquisition of communications data, which was created out of that vague section in the Telecommunications Act 1984, has been used illegally by the intelligence and security services for 10 years. We must guard against carelessly passing clauses so vague as to be open to misuse.