Investigatory Powers Bill

Debate between Lord Keen of Elie and Lord Janvrin

Monday 11th July 2016 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I shall speak first to the government amendment. Clause 1 refers to those offences found elsewhere in the law that provide protections for privacy or safeguards against the misuse of these powers. This amendment simply corrects a minor error in the drafting; the Bill currently refers to the,

“common law offence of misfeasance in public office”.

That offence is more correctly referred to as misconduct in public office. This amendment simply reflects the usual name for the offence in common law, and will prevent confusion with the distinct civil cause of action, which is usually referred to as misfeasance in public office.

[Lord Janvrin]

I rise to speak to Amendment 15 in this group, again on behalf of the Intelligence and Security Committee. It is crucial when this House is being asked to approve intrusive powers for the state that we all have a clear understanding as to how any misuse of those powers will be dealt with. These are exceptional powers, capable of revealing the most sensitive and detailed information about private lives. The Bill already includes offences related to the unauthorised interception and misuse of communications data, and there are other relevant offences mentioned in other legislation relating to data protection or computer misuse, for example. However, the Intelligence and Security Committee has concluded that these offences, scattered across numerous Acts of Parliament as they are, are insufficient and lack clarity. There would, therefore, be considerable benefit in setting out a single offence in one single place in this Bill alongside the intrusive powers we wish to regulate.

Your Lordships will note that we have sought to include wording in this amendment relating to wilful and reckless misuse of intrusive powers. We are not seeking to make minor, accidental mistakes criminal offences; we are focusing on the most egregious abuses of investigatory powers. There have been arguments that the creation of a new overarching offence for misuse of powers would add confusion in the law, duplicate existing offences and create a “chilling effect” for those using these powers in the agencies. Neither of these arguments is particularly compelling.

First, far from adding to confusion in legislation, it is self-evident that putting a single offence for misuse in one place should simplify legislation in this area, as it avoids the need to look for offences scattered throughout the legislative corpus and the common law. Potential duplicate offences can be dealt with easily, as has already been done in Clause 231, which amends the Wireless Telegraphy Act. The clause effectively says that an offence under the Wireless Telegraphy Act which is also an offence under the Investigatory Powers Bill should be dealt with preferentially under the Investigatory Powers Bill.

Secondly, the argument that an overarching offence would have a “chilling effect” on agency staff seems exaggerated. If a certain action constitutes a criminal offence anyway, it seems highly unlikely that an agency staff member would act differently depending on where and when the legislation appeared. If agency staff are engaging in activities that are on the edge of lawfulness, it is quite right that they should be given grounds to pause for thought, at least to the extent that they take internal legal advice if they wish to continue their work. The amendment would therefore be a simplification of the law and provide suitable penalties for serious transgressions.