Investigatory Powers Bill

Lord Beith Excerpts

Monday 5th September 2016 Lords Chamber

[Lord Beith (LD)]

My Lords, before my noble friend responds, which I think he is about to do, I will take the opportunity to say that the motivation behind my noble friend’s amendment is a very sound one. The fact that you do not know whether you are being wrongly investigated is contributing to a sense of unease about the intelligence provisions in this legislation. This is a problem we have to try to address.

The Minister has put forward some genuine, practical considerations which would make it difficult to implement a clause such as my noble friend’s. This is not a new problem: throughout the history of the Investigatory Powers Tribunal, we have had the problem that the only answer that could be given is that no unlawful activity has been carried out, which does not tell you whether any activity has been carried out. If it was carried out, it was lawful, but maybe it was not carried out at all. It was an infuriating answer for people who suspected that they might have been subject to investigatory powers but had no way of knowing or being certain.

It is a problem which even existing procedures sidestep. The Minister referred to ways in which notification may take place in cases where a mistake has been made. Included in the category of people to whom that might apply would be the very people he said he did not want to assist by bringing to their attention that on this occasion, they had been unsuccessfully investigated but there might well be reason to investigate them in the future. The Minister was wrong to say that the people to whom we would be imparting this information were criminals or people threatening the security of the state. If an investigation has not been successful in identifying who is involved in a radicalisation ring or in planning a kidnapping, that may well be because some of those people genuinely were not involved in any way, and some other factor—a mistaken number, for example—had drawn them into the net of the inquiry. Maybe they were known to others involved but genuinely played no part in it, and that emerges from the intelligence.

We should recognise, in considering this suggestion, that strong fears arise from uncertainty and from an inability to establish whether you have been the subject of investigation or not, when there is no reason for you to have been so subject. That of course places a very heavy burden on the commissioners, because rather like special advocates, they have to represent the concerns of people with whom they cannot check—they cannot ask, “How do you feel about this?”. At the very least, it is a salutary reminder of the importance of the processes which this Bill will introduce and of the involvement of judicial commissioners, and we may need to revisit this issue in the future.

[Lord Hope of Craighead (CB)]

My Lords, I absolutely understand the motivation behind the amendment, but I wonder whether the Minister might consider another objection. He referred to the risk of the person who was notified changing his practices in the knowledge that what he was doing was being observed by one or other of these various methods. The problem may be not the individual himself but the people with whom he is in contact. One does not know how wide the web is of the group to which he belongs, and it would be so easy for that message to be passed around to people to warn them that there is a particular mechanism in play which is tapping into what he does and that those who operate in the same way as he does will be subjected to the same kind of scrutiny. I rather suggest that the problem is more wide-ranging than the Minister was telling us in his very careful reply to the amendment.

--- Later in debate ---

[Lord Beith]

My Lords, these amendments address the fact that the fundamental principle in Clause 207 is very heavily qualified, even in cases where the error might be serious. I draw your Lordships’ attention to paragraph 5.42 of David Anderson’s report on bulk powers, in which he deals with errors. He rightly sets this in the context of a strong culture of compliance and self-reporting in the agencies when things go wrong. I agree with that, and it is right that we discuss it in that context. However, the fact remains that there are errors and, as the Minister pointed out, the statistics of errors are reported, so we know what they are. My concern is to be satisfied that most of these errors, if they impinge on the rights of a citizen, are notified to the citizen so that they know they can take further action.

I particularly draw attention to one case. David Anderson says in paragraph 5.42:

“In one very serious incident in 2014, an individual who deliberately undertook a number of unauthorised searches for related communications data had his employment terminated and vetting status withdrawn”.

That clearly indicates the point I made earlier: the agencies take this matter very seriously. I am interested in whether in that case the individual or individuals who may have been the victims of that improper use of the powers would be notified under the provisions of this clause, or whether the clause is so qualified that they might not be. Quite clearly, powers were abused by an individual acting without authority and wrongly, and the individual and the agency paid the price for doing so—he lost his job, which, from the limited description, seems entirely right. However, it is not clear whether the citizen, who had wrongly been the subject of this investigation, would know and would therefore be able to pursue his rights.

[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.