Investigatory Powers Bill

Lord Butler of Brockwell Excerpts

Wednesday 7th September 2016 Lords Chamber

Moved by

[Lord Butler of Brockwell]

201A: After Clause 142, insert the following new Clause—
“Offence of unauthorised examination of material
(1) A relevant person who, without lawful authority, knowingly or recklessly fails to comply with the safeguards referred to in section 142 is guilty of an offence.(2) In this section “relevant person” means a member of the intelligence services.(3) Subsection (1) does not apply to a relevant person who shows that he or she acted in the reasonable belief that he or she had lawful authority to engage in the activity to which subsection (1) relates.(4) 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),(ii) to a fine, or(iii) to both;(b) on summary conviction in Scotland—(i) to imprisonment for a term not exceeding 12 months,(ii) to a fine not exceeding the statutory maximum, or(iii) to both;(c) on summary conviction in Northern Ireland—(i) to imprisonment for a term not exceeding 6 months,(ii) to a fine not exceeding the statutory maximum, or(iii) to both;(d) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine, or to both.”

[Lord Butler of Brockwell (CB)]

My Lords, in moving Amendment 201A I shall speak at the same time to the other proposed new clauses tabled in my name in the group, which have a similar purpose. These proposed new clauses would implement a recommendation of the Intelligence and Security Committee that misuse of the intrusive powers in the Bill should be subject to an adequate penalty. I think that that is a concern that is generally agreed with in the House.

I am aware that before the Summer Recess my noble friend Lord Janvrin moved Amendment 15, which sought to achieve this purpose. It would have done that by creating a single, overarching criminal offence for the misuse of any of the powers in the Bill. In response the noble and learned Lord, Lord Keen, speaking for the Government, argued against that proposed new clause on the grounds that a single overarching offence for the misuse of any of the powers covered by the Bill would not be appropriate since it would be a case of one size fits all.

Of course certain of the activities covered by the Bill have an appropriate offence for their misuse, such as the misuse of the powers of interception and access to communications data. Other activities such as equipment interference are already covered by offences in other legislation such as the Computer Misuse Act 1990. But it is a curious fact that there is a gap in relation to bulk powers, which is the subject we are debating today. Given that these bulk powers have been the cause of such concern in themselves, it is anomalous that the misuse of those powers should not constitute a serious offence and carry a suitably robust penalty. As the Bill stands, the misuse of these bulk powers merely constitutes a relatively minor offence under the Data Protection Act or in some cases it is only an internal disciplinary matter. Neither of those penalties would appear to be appropriate in the case of the misuse of these bulk powers.

It may be argued against these three proposed new clauses that they would have a chilling effect on members of the intelligence agencies, but I draw attention to the drafting, which states that the offence would apply only if:

“A relevant person … without lawful authority, knowingly or recklessly failed to comply with the safeguards”,

set out in the Bill, so this is not something that a member of the intelligence services would stumble into accidentally. In those circumstances, this is not something which need deter or prevent the satisfactory operation of the activities of members of the intelligence services. This would apply where there has been serious, knowing and deliberate misuse of the bulk powers in the Bill. It seems appropriate that in those cases a serious penalty should be applied. With that intention, I beg to move.

[The Marquess of Lothian (Con)]

My Lords, I rise briefly to support the noble Lord, Lord Butler, in these proposed new clauses. As a member of the Intelligence and Security Committee I can confirm that we felt very strongly that there was a gap here which needed to be filled. I am conscious of the fact that the major consideration behind this Bill was to create a balance between privacy on the one side and security on the other. The way we did that was by ensuring that the security aspects were well and properly covered, as indeed they are in terms of the bulk powers in this Bill, but equally that confidence on the privacy side was sufficient for people to accept that where they were misused there would be an adequate penalty against that. But looking at the Bill and the other offences that can be committed and the penalties available for them, in the case of bulk powers, which is what most of the public in the evidence we took in the ISC were concerned about, there seems to be a gap that is covered only by minor results of a criminal offence.

I suggest to the Government and to my noble and learned friend that whether or not he agrees completely with the precise criminal penalties suggested in the amendments, the principle of having a stronger set of criminal provisions relating to these powers should be considered very seriously.

--- Later in debate ---

[Lord Rooker]

This is probably a question for the noble Lord, Lord Butler, rather than anyone else. In subsection (2) of the proposed new clause,

“‘relevant person’ means a member of the intelligence services”.

I am pretty certain from the visits we did with the RUSI panel that other people are used for their expertise by the agencies who are not what you might call employees. I am not sure what the definition of “member” would be. When the noble Lord was drafting that or taking advice, did he consider that that covered everybody who was working in, as opposed to being an employee or member of, the intelligence services? I do not quite know; there could be a gap of people who are free riders.

I read David Anderson’s report only yesterday, but I did read all of it. On at least three occasions he mentions circumstances where people walked the plank; in other words, under the system operating now people who did something wrong either left the service or were sanctioned. It is not as though nothing is happening. It is not highlighted in there—it is buried away almost as an aside. But there have been at least three occasions where this happened. This is part of the reassurance there has to be for the public: who watches the watchers? That is what we have to sell on the privacy aspect, because we have to have it all secret or as much of it as possible secret. The public are being watched over—who is watching the watchers? If there are examples where incidents have occurred and people have walked the plank, those ought to be sufficient examples that the system is operating. I do not know whether or not new sanctions are needed, and I do not know whether this sanction would apply to everybody within the agency because not everybody there is an employee.

[Lord Butler of Brockwell]

My Lords, first, I will attempt to answer the questions of the noble Lord, Lord Rooker. The purpose of the reference to the intelligence services is that this is an activity of the intelligence services and it distinguishes that from the activities of the police or others. Only the intelligence services carry out these functions. On his second point, it is absolutely true, and I know from my own experience, that any misconduct of this sort within the intelligence services would be very severely dealt with and would be the subject of disciplinary action, usually leading to dismissal. The problem with that approach is that it is less than the criminal offences that are applied to other types of misuse of these powers. It is difficult to explain to the public why there should be that distinction.

In answer to the Minister, to whom I am grateful for his explanation, if we are providing reassurance to the public, we ought to have an offence that relates directly to the misuse of bulk powers. Other specific offences are referred to in the Bill, such as for the misuse of communications data or under the Computer Misuse Act. Why in the case of the misuse of bulk powers should we rely only on the general power of misconduct in public office? That is an anomaly.

I wish to make it absolutely clear that, like the noble Lord, Lord Paddick, and the Minister, I have complete confidence in the integrity of members of the intelligence services. That is not what is at issue here. What is at issue is having equal treatment for different types of offence—different types of abuse of powers—under this Bill. It seems to me that there ought to be an evenness in the approach to that, which is not at present in the Bill.

My noble friends and I and, I am sure, the Intelligence and Security Committee will consider carefully what the Minister has said, but I must reserve our right to return to this on Report.

Amendment 201A withdrawn.