Investigatory Powers Bill

Lord Carlile of Berriew Excerpts

Monday 5th September 2016 Lords Chamber

[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.

[Lord Carlile of Berriew (LD)]

My Lords, with great respect to my noble friends Lord Paddick and Lord Beith, I am with the Minister and the noble and learned Lord, Lord Hope, on this one. What my noble friends may have overlooked is the strength, distinction and effectiveness of the Investigatory Powers Commissioner. If there was any evidence to indicate that the commissioner, whether the present one or a future one, was likely to behave in a malign way and not reveal where improper action had taken place, then my noble friends’ concerns might have some validity. As has been said, though, the Bill is a world leader, not least in the protections that it contains. I commend to the House the provisions that have been placed in the Bill without these unnecessary amendments.

[Earl Howe]

My Lords, I shall briefly respond to the points that have been made. I am grateful to the noble Lord, Lord Beith, for amplifying the case that his noble friend made in introducing the amendment. In the end, we come back to the point that the noble Lord, Lord Carlile, has just articulated. We are talking here about the proper, legitimate use of the powers that the Bill contains, with robust oversight and mechanisms for redress built in, and the Investigatory Powers Commissioner is indeed an important safeguard in that context.

We are absolutely on board with the proposition that where an innocent person has been completely wrongly subject to the use of the investigatory powers—that is, where a serious error has occurred—there is no argument that that person should be informed. However, I submit that one cannot talk in the abstract about someone who has been “wrongly investigated”, which I think was the phrase used by the noble Lord, Lord Beith. You can be wrongly investigated if you are completely innocent, but you can also be wrongly investigated if there is perhaps not enough to pin on you as the culprit in a particular case but you might nevertheless, subject to further evidence, be implicated in a serious crime or a threat to national security. So we have to be clear about our terms in this context.

I come back to the fact that there are issues of principle and practice here that make this particular amendment unworkable. I also take on board the very good point made by the noble and learned Lord, Lord Hope, that it is not just an individual who could react to the news that they had been investigated in a way that would frustrate law enforcement agencies or intelligence services but a whole group of people. That in turn could affect national security, or indeed the conduct of criminals, much more widely.