Investigatory Powers Bill

Debate between Lord Keen of Elie and Earl of Erroll

Monday 5th September 2016 Lords Chamber

[Lord Keen of Elie]

Clearly, I am not in a position to comment on a particular case. However, in the context of what is said at paragraph 5.42, one has to remember that there is the further issue of whether it would have been in the public interest to make disclosure. That necessary test would have had to be met before there would have been disclosure, however serious the original breach.

[The Earl of Erroll (CB)]

My Lords, I have been listening to the debate and realised that of course people are concerned because they do not know what information is held. Sometimes people get into trouble because something is held on file and they do not know what it is. Only the subject knows what affects them and what does not. To take the example just given, where data may have been gathered by someone who is subsequently fired, that information may have been quite sensitive if revealed to someone in another organisation, and only the individual who was the subject of those unauthorised requests would know that. Therefore, this area bears examination. I am not sure how we should deal with that, but to rely just on the commissioner to know exactly how this would affect everyone would be difficult as well. It is worth thinking about this further.

[Baroness Hamwee]

My Lords, on the example my noble friend mentioned, it is hard to think that it would not be in the public interest for somebody who has been the subject of,

“a number of unauthorised searches for related communications data”,

to be notified. Of course I thank the noble and learned Lord for his detailed reply, although I am not sure whether he responded to my amendment on the code of practice.

I do not disagree about the national interest but it does not answer my point about reversing the burden so that the default position would be that there is notification unless it is not in the public interest—or, to put it another way, notification rather than notification only if it is in the public interest that somebody is informed.

On telecommunications operators and the report to the ICO, as the Bill seeks to do throughout, I sought to join up some of the dots in this landscape. Importantly, on the Human Rights Act, the noble and learned Lord says that the considerations in Clause 2 are not relevant; we may have another go at this on Report with a slightly different approach. However, he also said—I know that this was simply a turn of phrase—that Clause 207(3) does not weaken Clause 2, “I suggest”. I hope that he will be able to say that that amounts to an assurance to the Committee. Perhaps I may invite him to do that, otherwise we will certainly come back to this for an assurance.