Investigatory Powers Bill (Third sitting)

Christian Matheson Excerpts

Committee Debate: 3rd sitting: House of Commons
Tuesday 12th April 2016 Public Bill Committees

[Robert Buckland]

I am extremely grateful to my hon. and learned Friend. She is quite right. In fact, not only is there the offence of misconduct in public office, as it is now constituted, having been reformed from the old offence of misfeasance, but we have provisions in the Wireless Telegraphy Act 2006, the Computer Misuse Act 1990 and, as I have already mentioned, the Data Protection Act 1998. I therefore consider that the new offence we are introducing in clause 9, combined with relevant offences in other legislation, in particular the provision in section 13 of the Data Protection Act 1998, provides appropriate safeguards. On that basis, I respectfully invite the hon. and learned Lady to withdraw the amendment.

[Christian Matheson (City of Chester) (Lab)]

It is, as always, a pleasure to see you in the Chair, Ms Dorries. The Solicitor General has given examples of wide-ranging powers that are available to protect the public. I was grateful to listen to his contribution. However, during Second Reading I queried the Home Secretary’s position on the new offences that are being created. Many of the offences the Bill refers to, particularly in clause 9, relate to the regulation of investigatory powers. My concern is that later the Bill requires internet service providers, for example, to amass a large amount of personal data, and there is a danger that those data may be stolen rather than intercepted. I gave the example of a newspaper perhaps finding a low-grade technical operator in a telecommunications company, passing a brown envelope to them and stealing a celebrity’s internet connection records. I am concerned that the offence in clause 9 of unlawfully obtaining communications data does not go far enough.

I bear in mind the Solicitor General’s comments on other protections that are available, but would he or the Government consider an offence of not just obtaining but being in possession of unlawfully obtained communications data, which would strengthen the protections given to members of the public? We all know that the kind of scenario that I am expressing concern about has not been unknown in the last few years, as various court cases have demonstrated—though I should not discuss their details. Is the Minister satisfied that the protections he has outlined and those raised by the hon. Member for South East Cambridgeshire are sufficient, or should we take this clause a bit further, to give the public broader and wider protection of their privacy and the security of their internet and telecommunications transmissions?

[Keir Starmer]

It is a pleasure to follow my hon. Friend because I want to develop the point. This is a welcome clause, it is right that it is here, and we support it. However, we question whether it goes far enough. It only covers obtaining communications data. We think that serious consideration should be given to an overarching offence of misuse of the powers in the Bill. At the moment, there are specific provisions in relation to intercept which are replicated frim RIPA and we now have this welcome provision, but there is no overarching offence of misuse of the powers in the Bill.

It is all very well to say that there is the tort of misfeasance in public office. That is not the equivalent of a criminal offence. It has all sorts of tricky complications when one tries to apply it in practice. It is fair to say that there are other bits of legislation that might be made to fit in a given case, but it would be preferable and in the spirit of David Anderson’s approach for a comprehensive piece of legislation for an overarching criminal offence to be drafted, either out of clause 9 or in some other way, relating to misuse of powers in the Bill. It has been a source of considerable concern in the past and I ask the Government to think about a wider offence that would cover all the powers, because comms data are only one small subset of the issues and material information we are concerned with.

I have two short supplementary points. In subsection (3) there is a reasonable belief defence. It would be helpful if the Minister said a bit more about that. May I also foreshadow the inconsistency that we will need to pick up as we go along in the way reasonable excuse and reasonable belief are dealt with in the Bill? It is set out in subsection (3), but there is an inconsistency in other provisions that I will point to when we get there.

My other point is to ask the Minister to consider whether obtaining communications data unlawfully is a sufficient definition to make the offence workable in practice. I put my questions in the spirit of supporting the clause, but I also invite Ministers to go further and consider drafting a clause that covers the misuse of powers in the Bill, rather than simply saying that if we fish about in other bits of legislation or common law we might find something that fits on a good day. In my experience, that is not a particularly helpful way of proceeding.

--- Later in debate ---

[The Solicitor General]

I am grateful to my hon. Friend, who served with distinction on the Joint Committee. That provision relates to creating a statutory duty, which, with respect to her, is slightly different from some of the arguments we are having about criminal sanctions. However, it is important to pray that in aid, bearing in mind the mixed approach we need to take in order to hold public office holders and public authorities to account when dealing with this sensitive area.

The Bill provides a great opportunity for us to put into statute a new offence, which will, together with the other agencies, provide a robust regime that will add to the checks and balances needed in this area in order to ensure that our rights to privacy are maintained wherever possible, consistent with the Government’s duty towards the protection of our national security and the detection and prevention of crime.

[Christian Matheson]

I am grateful to the Solicitor General for that clarification. My concern about his reliance on, for example, the Data Protection Act is what happens in the scenario I described, which I do not believe is so unbelievable, bearing in mind the experiences that hon. Members of this House have had in the past few years with the theft of their information. One problem that his solution presents is that if, for example, my personal data were stolen and published, the only recourse I would have is to the telecommunications provider, which is in a sense a victim itself. The real villains and culprits—the people who stole the information and published it—would not be covered by the Data Protection Act, which is why I seek consideration of extending the clause or guidance from the Solicitor General.

[The Solicitor General]

I hear what the hon. Gentleman says. I have already indicated that I will consider the matter further. I will simply give this solution. He mentioned the stealing of information. Information is property, like anything else, and of course we have the law of theft to deal with such matters. I do not want to be glib, but we must ensure we do not overcomplicate the statute book when it comes to criminal law. I will consider the matter further, and I am extremely grateful for his observations.

Question put and agreed to.

Clause 9 accordingly ordered to stand part of the Bill.