Investigatory Powers Bill

Lord Butler of Brockwell Excerpts

Report: 1st sitting (Hansard): House of Lords
Tuesday 11th October 2016 Lords Chamber

Moved by

[Lord Butler of Brockwell]

58: Schedule 3, page 212, line 4, leave out “or 56” and insert “, 56 or (Offence of breaching safeguards relating to examination of material under bulk interception warrants)”

[Lord Butler of Brockwell (CB)]

My Lords, Amendment 58 and others in this group are also in the names of my noble friend Lord Janvrin and the noble Marquess, Lord Lothian. Amendments 58 and 59 are in fact consequential amendments. The substance is in Amendments 195, 203, 217 and 241, the purpose of which is to introduce specific penalties for misuse of powers concerned with bulk collection of data. Amendment 195 introduces penalties for the wrongful examination of material collected under bulk interception; Amendment 203 for the wrongful examination of bulk collection of communications data; Amendment 217 for the wrongful examination of data obtained from bulk equipment interference; and Amendment 241 for the wrongful examination of datasets collected in bulk. I make it clear that I do not believe that these powers are needed to deal with current abuse of powers by the intelligence agencies, nor because I expect the agencies to abuse the powers in the Bill in the future. I know enough of the agencies to know that their standards in these matters are high.

The reason for introducing these clauses is that the Bill gives exceptional powers, and the powers in respect of bulk collection have given rise to the greatest public concern. There are already specific offences for the misuse of other powers in the Bill; for example, targeted interception and access to communications data. Penalties for the misuse of equipment interference are covered by other legislation; for example, the Computer Misuse Act. However, at present there is no specific offence on powers which cause most concern to the public—the powers for bulk collection. For misuse of these powers, reliance would have to be placed on the general purposes in the Data Protection Act, on internal discipline or on the very general offence of misconduct in public office. There is clearly an unevenness here. The misuse of information collected under bulk powers should be subject to specific penalties like the misuse of other powers in the Bill. This matter was raised in Committee and I am glad to say that the Government have listened; we are very grateful for the discussions that have taken place.

I also make clear that it is no part of my intention that members of the intelligence agencies should be inhibited in their legitimate searches by fear that they may accidentally incur these penalties. Amendments 195, 203, 217 and 241 restrict the offence to cases where persons deliberately choose to examine material which they know or believe is not authorised under the Bill, so only deliberate misuse would be caught by these provisions.

I believe that these amendments are justified and that they introduce a proper balance into the Bill. I also believe that they satisfy the intentions of the Intelligence and Security Committee of Parliament, which drew attention to this unevenness. I am very grateful to the staff of the ISC and to the government Bill team for their help in formulating the amendments. I beg to move.

[Lord Paddick]

My Lords, I support the amendments for the very reasons that the noble Lord, Lord Butler of Brockwell, has just set out. Bulk powers are exceptional powers and they raise concerns among the public. There are specific offences in other parts of the Bill and in other legislation, and now we are focusing on deliberate abuse. I echo what the noble Lord, Lord Butler, said about the integrity of the security services, but we believe that these specific offences are necessary for public reassurance, if nothing else.

--- Later in debate ---

Moved by

[Lord Butler of Brockwell]

59: Schedule 3, page 216, line 1, leave out “or 56” and insert “, 56 or (Offence of breaching safeguards relating to examination of material under bulk interception warrants)”

Investigatory Powers Bill

Lord Butler of Brockwell Excerpts

Report: 3rd sitting (Hansard): House of Lords
Wednesday 19th October 2016 Lords Chamber

Moved by

[Lord Butler of Brockwell]

203: After Clause 160, insert the following new Clause—
“Offence of breaching safeguards relating to examination of data
(1) A person commits an offence if—(a) the person selects for examination any communications data obtained under a bulk acquisition warrant,(b) the person knows or believes that the selection of that data for examination does not comply with a requirement imposed by section 160, and(c) the person deliberately selects that data for examination in breach of that requirement.(2) A person guilty of an offence under this section is liable—(a) on summary conviction in England and Wales—(i) to imprisonment for a term not exceeding 12 months (or 6 months, if the offence was committed before the commencement of section 154(1) of the Criminal Justice Act 2003), or(ii) to a fine,or to both;(b) on summary conviction in Scotland—(i) to imprisonment for a term not exceeding 12 months, or(ii) to a fine not exceeding the statutory maximum,or to both;(c) on summary conviction in Northern Ireland—(i) to imprisonment for a term not exceeding 6 months, or (ii) to a fine not exceeding the statutory maximum,or to both;(d) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine, or to both.(3) No proceedings for any offence which is an offence by virtue of this section may be instituted—(a) in England and Wales, except by or with the consent of the Director of Public Prosecutions;(b) in Northern Ireland, except by or with the consent of the Director of Public Prosecutions for Northern Ireland.”

--- Later in debate ---

Moved by

[Lord Butler of Brockwell]

217: After Clause 180, insert the following new Clause—
“Offence of breaching safeguards relating to examination of material
(1) A person commits an offence if—(a) the person selects for examination any material obtained under a bulk equipment interference warrant, (b) the person knows or believes that the selection of that material does not comply with a requirement imposed by section 179 or 180, and(c) the person deliberately selects that material in breach of that requirement.(2) A person guilty of an offence under this section is liable—(a) on summary conviction in England and Wales—(i) to imprisonment for a term not exceeding 12 months (or 6 months, if the offence was committed before the commencement of section 154(1) of the Criminal Justice Act 2003), or(ii) to a fine,or to both;(b) on summary conviction in Scotland—(i) to imprisonment for a term not exceeding 12 months, or(ii) to a fine not exceeding the statutory maximum,or to both;(c) on summary conviction in Northern Ireland—(i) to imprisonment for a term not exceeding 6 months, or(ii) to a fine not exceeding the statutory maximum,or to both;(d) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine, or to both.(3) No proceedings for any offence which is an offence by virtue of this section may be instituted—(a) in England and Wales, except by or with the consent of the Director of Public Prosecutions;(b) in Northern Ireland, except by or with the consent of the Director of Public Prosecutions for Northern Ireland.”

Investigatory Powers Bill

Lord Butler of Brockwell Excerpts

Ping Pong (Hansard): House of Lords
Wednesday 2nd November 2016 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords, I have been second to none in this House in supporting the importance of this legislation. I have taken part at various stages and have contributed in a minor way to its improvement. The powers it replaces do not expire until the end of the year. If the House of Commons again rejects —as I expect it will—the amendments that are being passed today and they come back to this House, I will not then support them, because I do not want to see the Bill delayed. However, this is an opportunity to show that this House believes strongly that the Government mean what they say about a proper consultation on the pursuit of Leveson.

I do not think I am alone in suspecting that the Statement made by the Government yesterday was a diversionary tactic. I hope it was not, but we have an opportunity today to show that this House really believes that this must be pursued seriously and that action must be taken—perhaps on a compromise basis—to achieve the objectives of the Leveson report.

[Lord Wallace of Tankerness]

To follow the point made by the noble Lord, Lord Butler of Brockwell, I think it important that the other place be given another chance to think about the Bill. To date, it has had only one opportunity to consider it, based on the amendments your Lordships’ House passed when the Bill was in this House. There will be another opportunity.

As has been pointed out by the noble Lord, Lord Rooker and noble Baroness, Lady Hollins, a number of Conservative Members yesterday during the questions following the Statement by the Secretary of State at the Department for Culture, Media and Sport indicated that they were not persuaded by the Government’s case for not yet implementing Section 40. Dr Andrew Murrison asked whether the Secretary of State agreed,

“that it would be reasonable to accept Baroness Hollins’ amendments”,

and Sir Gerald Howarth—not someone I am usually given to quoting with approval—asked:

“Does she not agree that a great virtue of the Leveson inquiry was that it took this whole contentious issue out of the hands of politicians; that by going for this consultation, which she will respond to, she is in danger of embroiling politicians in the issue again; and that low-cost arbitration has to be part of the solution?”.—[Official Report, Commons, 1/11/16; col. 806.]

So there is some indication that even on the Government Benches in the Commons, there are Members who are not persuaded of the Government’s position. I hope that one might describe it as a consultation of convenience that it came along when it did.

I will come back to that point but, on the point made by the noble Lord, Lord Pannick—which has been addressed by the noble Lord, Lord Butler—we know that the legislation which this Bill as a whole seeks to replace has a sunset clause. That clause is just under two months away; we have heard from the Minister that even if your Lordships vote for the Motion of the noble Baroness, Lady Hollins, today, it will be another two weeks until the House has the chance to consider it again. There is no urgency on the Government’s part to get Royal Assent this week.

It is also clear that the content of the Bill is in no way threatened by the amendments proposed by the noble Baroness. They are supplementary and do not detract in any way from the security issues which have been a matter of considerable debate on the part of your Lordships and, indeed, the House of Commons. They seek to address the very specific reasons that were put forward by Ministers and in the other place as to why this was not a suitable amendment. She has sought to, as it were, uncouple these amendments from the other parts of the Bill. They are supplementary and in no way detract from the security issues in the Bill.

As I indicated when we debated this matter on Report, for me what is important is that commitments were made to Parliament—to both the House of Commons and your Lordships’ House—back in March 2003, when various amendments were withdrawn: amendments to the Defamation Bill that your Lordships’ House had passed and amendments that had been tabled, I believe, to the Enterprise Bill and, in the other place, to the Crime and Courts Bill. They were withdrawn on a clear understanding that certain amendments going forward to the then Crime and Courts Bill would be implemented. I was part of the group who worked on the cross-party agreement, although I was not present when it was reached. Subsequently I also did much on a royal charter so that press regulation would be taken as far away from politicians as possible. The commitments made to Parliament are in jeopardy through the Government not implementing Section 40. More importantly, commitments were made to some of the victims of hacking. We should remember that the amendment we are discussing does not go as far as Section 40: it relates only to phone hacking. Along with the then Deputy Prime Minister, my right honourable friend Nick Clegg, I met the parents of Milly Dowler. Two things that struck me were their great dignity but also the great pain they had suffered. The Prime Minister gave commitments to them and other victims that there would be an inquiry, which took place, and that efforts would be made to ensure that such things did not happen again. These commitments trump any consultation. That is why I support the amendment in the name of the noble Baroness, Lady Hollins.