Investigatory Powers Bill

Baroness Hayter of Kentish Town Excerpts

Monday 11th July 2016 Lords Chamber

[Lord Oates (LD)]

My Lords, I will not detain the Committee long. I support the amendments in the names of my noble friends Lord Paddick and Lady Hamwee and I will speak briefly to the amendment in the name of the noble Baroness, Lady Hollins.

During the coalition, I was involved in the discussions which led to the royal charter and the other commitments made by all the party leaders and the coalition Government. It is important either that the Government commence the relevant parts of the Act or, as the noble Baroness has indicated, that this amendment should proceed to a Division when the Bill comes back on Report. The Secretary of State’s failure to commence the relevant sections of the Act is an utter betrayal of the commitments which were made at the time by all parties, including the Prime Minister. Most importantly, it is an utter betrayal of the many victims of phone hacking and other invasions of privacy who were to be protected by the royal charter and the Act. I hope that the Government will think very carefully about this. Perhaps the Prime Minister, before he leaves office, will stand up and ensure that the commitments which he made personally are implemented.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I will speak very briefly on Amendment 16, to which I added my name, which has already been dealt with by the noble Lord, Lord Paddick. Should the Government accept the logic of that amendment, they might also want to look at Clause 4(8)(b)(i), which ought also to be amended to include “a private postal service”. Like the noble Lord, Lord Grabiner, I think the amendment in the name of the noble Lord, Lord Strasburger, sounds like a carte blanche for allowing private phone hacking. The noble Lord came up with better words than I could when he spoke about thinking that “public interest” and of “interest to the public” were the same. I would be very alarmed at the idea of allowing phone hacking by private bodies, simply because they thought it might be in the public interest.

The more substantial issue in this group is dealt with in Amendments 18 and 246—I refer to them as the Leveson amendments. The Labour Party has an interest in Amendment 18. Our names are not on it but our former leader, my right honourable friend Ed Miliband, was, along with the current Prime Minister, one of the signatories to the deal which has already been described and which led to amendments being withdrawn in this House and in the Commons. Failing to implement Parliament’s decision on this matter is a shameful disregard for the law on the part of the Government. The Act was passed in good faith and the Government should have implemented it, in accordance with the wishes of this House and the other place. Non-commencement is an unacceptable device to undermine legislation which has been passed.

Amendment 18 seeks gently to encourage the Government to bring into effect the law already passed, and we hope they will agree to do that. I will not rehearse the case that has been made so well already. However, it is remarkable that, as we consider a Bill on investigatory powers that sets out clearly and openly what the state and its agencies can do regarding hacking—the limits, the safeguards and the penalties for exceeding the law—private and unaccountable profit-making bodies such as the press continue to get away with things our spooks rightly would not be able to. The Government should not undermine Parliament by failing to commence Section 40 and we hope that, today, they will show their willingness to act now.

[Lord Strasburger]

Before the noble Baroness sits down, can I point out that I share entirely her concerns and those of her noble friend about journalists confusing the public interest with the interest of the public? If there were any such amendment along the lines that I suggested, it would have to be drafted so narrowly that that confusion could not exist.

[Lord Keen of Elie]

My Lords, I begin with Amendment 15, which raises the issue of creating a new criminal offence. This was initially discussed in the other place at earlier stages of the Bill’s passage.

In the other place the Government made it clear that each of the powers in the Bill is already subject to one or more civil penalties or criminal offences for misuse. Part 1 has always contained a number of privacy protections that are central to the Bill, and it now makes clear the existing offences and sanctions that apply in respect of the different powers, such as the offences that relate to the unlawful interception or unlawful obtaining of communications data. In addition to the strict safeguards that are explicit in Part 1 of the Bill, there are a number of other additional offences that exist elsewhere in statute but apply equally to any misuse of the powers.

In response to the concerns raised in the other place and with sympathy for the Intelligence and Security Committee’s desire for clarity, the Government listened carefully and tabled amendments that now more explicitly refer to the relevant offences set out in other statutes, such as the Computer Misuse Act 1990, which applies to equipment interference, and the Data Protection Act 1998. These put beyond doubt the penalties that would apply in the event of deliberate wrongdoing by a member of a public authority.

On the basis that there are existing offences that apply to every power in the Bill, the Government are reluctant to introduce a new criminal offence that would lead to confusion, as it would overlap or duplicate those set out elsewhere. Perhaps more simply, it would be unnecessary. The powers in the Bill are varied, each with their own distinct regimes. If we sought, as was suggested by the noble Lord, Lord Janvrin, to create one offence to fit them all, it would either be too broad and catch too much, or by being too narrow actually miss something and result in a less effective sanction. It could also lead to a lack of legal clarity and potentially hamper the effective enforcement of existing offences. The point is that one size does not always fit all.

There is a further concern. The heads of the three intelligence agencies have written to the Home Secretary and to the ISC outlining their very real concerns about the inadvertent operational impact this proposal may have. The officers working within our intelligence agencies are entirely committed to the mission of keeping the country safe. They are professional and ethical in the way in which they conduct their work. We recognise the concerns raised about potential misuse of investigatory powers, but the creation of a new offence may unnecessarily inhibit agency staff and limit their ability to operate with confidence and at pace against the numerous threats we face.

We do not disagree that intelligence officers who are exercising these most sensitive and intrusive powers should consider their actions carefully before using them, but I have seen no evidence that the dedicated men and women of our security and intelligence agencies give such matters anything less than the most careful consideration. I can quite easily see that Parliament’s creating a new offence that appears to be targeted solely and squarely at our intelligence agencies could have a detrimental impact on the confidence, morale and willingness of those persons to carry out the often dangerous yet vital work we ask them to do on our behalf. Moreover, the Government are clear that if anyone in a public authority were to act contrary to their obligations under the Bill, the matter would be taken extremely seriously. The current commissioners already ensure that they investigate and report publicly on the very infrequent cases of errors which involve serious misuse. In appropriate cases disciplinary action may be taken, up to and including dismissal, or civil or criminal liability incurred.

When these points are considered collectively, I hope noble Lords will agree that this puts beyond doubt the severe penalties that would apply in the event of deliberate wrongdoing by a member of a public authority. A new criminal offence is therefore wholly unnecessary and potentially confusing, and would adversely affect the operation of the agencies.

Amendment 16 seeks to extend the criminal offence of unlawful interception to “private” postal services. This is aimed at capturing those services which cater to more specialist clients; for example, companies that provide services to banks or lawyers. The noble Lord, Lord Paddick, referred to DX as an example of such a company. I understand the reason for the amendment and support the principle that the offence should apply to this type of company. However, these companies are already caught by the existing provision. The Bill describes a “public postal service” as one that,

“is offered or provided to the public, or a substantial section of the public”.

This includes companies that specialise in providing services to bespoke sectors, such as the legal profession or banks.

Moving on to Amendment 17, in the name of the noble Lord, Lord Strasburger, Clause 3 sets out the offence of unlawful interception. This is a vital safeguard that relates to one of the most sensitive powers provided for in the Bill. It underpins the protections for privacy that are fundamental to the Bill. I am afraid I cannot accept an amendment which would limit or even undermine that safeguard. The amendment would limit the offence by setting out circumstances in which it would not apply; for example, it provides a public interest defence to the offence. It would not be appropriate to allow someone to intercept the communications of another—without lawful authority—because that person takes the subjective view that it would be in the public interest. I note and agree with the observations of the noble Lord, Lord Grabiner, and the noble Baroness, Lady Hayter, in this regard. It would not be right to reduce this strong safeguard, which exists to protect individuals.

[Baroness Hayter of Kentish Town]

I should have come in on Amendment 16, but before the Minister moves on, the issue of the private postal service was raised by the Minister’s Scottish legal colleagues, who wrote to us. They felt that the definition of “public postal service” did not include DX. I wonder if he will agree to write to me so that the legal position is clarified, since it was good Scottish lawyers who raised the issue.

[Lord Keen of Elie]

I am obliged to the noble Baroness. It was raised by Scottish colleagues—Scottish colleagues with whom I do not agree—but I am quite happy to undertake to write to her. I should say it was raised by the Scottish Law Society, not the Scottish Bar.

Amendments 18 and 246 were spoken to very clearly by the noble Baronesses, Lady Hollins and Lady O’Neill, and the noble Lords, Lord Lipsey and Lord Oates. While I am quite happy to write on the matter of press regulation and the commencement of Section 40, press regulation is not the purpose of the Bill. I have to make that clear in this context because while I understand the points that are being made, they do not arise directly in the context of these amendments.

Moreover, the relevant amendments are not considered necessary. There is already a criminal offence where unlawful interception takes place on a public or private telecommunications system or a public postal service. There is also a cause of action which applies in a limited set of circumstances, where the criminal offence does not apply. Where there is an allegation that unlawful interception has taken place on behalf of a public authority, a person may seek recourse through the Investigatory Powers Tribunal, which has the power to provide redress, including awarding damages.

Where the conduct relates to an individual who does not belong to a public authority, there are other causes of action which may be applicable. I may have misunderstood the noble Baroness that the tort which currently exists in the Regulation of Investigatory Powers Act 2000—allowing an individual to take action against a person who has the right to control the use or operation of a private telecommunications system and who intercepts a communication on that system—has been added to the Bill by way of Clause 8, and that happened after the debate on the Bill in the other place. In these circumstances, we are not prepared to accept the amendments.

Turning to Amendments 20 and 21, Clauses 6(2) and 6(3) are important because they provide that where a public authority, or a telecommunications operator, is acting in accordance with a warrant properly obtained under the Bill, or the provisions of Clauses 42 to 50, they can be sure that they are not breaking any other law or required to obtain additional authorisations. This legal certainty is vital for those engaged in the essential work of keeping us safe.

The first amendment seeks to provide that future legislation could make that conduct unlawful for certain purposes. I understand the principle the noble Lords seek to achieve but I do not believe it is necessary. Nothing in the Bill prevents Parliament amending the legislation at a future date to make any of the activity unlawful or provide that some additional authorisation is required.

The second amendment seeks to amend subsection (3). The purpose of this subsection is to make clear that conduct undertaken in accordance with a warrant or which is authorised by any of Clauses 42 to 50 is to be treated as lawful. This is vital in providing companies with reassurance that by complying with a warrant they will not be acting unlawfully in relation to their regulatory obligations or other legislation. The effect of this amendment would be to provide that the conduct is lawful only for the purposes of the Bill. My concern, were we to accept this amendment, would be that we would remove the legal certainty that the companies and agencies rely on to do their job and to keep us safe. We therefore do not accept the amendment.

Amendment 84 relates to exceptions from the duty not to make unauthorised disclosures about warrants. It is absolutely right that the Secretary of State should be accountable to Parliament, even for the most sensitive decisions concerning the most sensitive powers. But when it comes to such matters, which necessarily must remain secret, it is absolutely right that Parliament provides a mechanism for the Secretary of State to be held to account, while at the same time doing nothing to jeopardise national security. That is the very reason for the existence of the Intelligence and Security Committee of Parliament.

To put beyond doubt that the Secretary of State is, and will continue to be, accountable to Parliament through the ISC for decisions relating to warrants, the Government amended Clause 54 and Clause 123 to make clear that the Secretary of State may disclose matters relating to warrants to the ISC. This will allow the ISC to carry out its statutory functions in holding the Government to account, while maintaining our security. It is right for the ISC to carry out this function and it would not be appropriate for disclosure to be made to Parliament as a whole. To do so would breach the long-standing principle of successive Governments to neither confirm nor deny matters relating to intelligence and security and could risk jeopardising our national security. Accordingly, I invite the noble Lords not to press their amendments.