Investigatory Powers Bill

Lord Janvrin Excerpts

Monday 11th July 2016 Lords Chamber

[Lord Paddick]

My Lords, I am trying to demonstrate—and in many cases, obviously, not succeeding—why the 10 tests as set out in the report are necessary, and how the Bill fails to meet those 10 tests.

As I was saying, on the filter, the noble and learned Lord, Lord Keen, in his summing up said that it did not create a database. I said in my Second Reading speech that it creates a virtual database. No doubt, we can discuss that issue when we come to it.

Overall, we feel that having the 10 tests as part of the Bill is an important safeguard for the privacy of individuals, and would place limitations on what the Government can do. I beg to move.

[Lord Janvrin (CB)]

I speak to Amendment 3, in my name, and note my interest as a member of the Intelligence and Security Committee. A lot of the points made by the committee have already been taken on board by the Government following discussions and scrutiny in another place.

In the committee’s report on the draft Bill, we recommended that privacy protections should form the backbone of the legislation around which the exceptional powers are then built. This is absolutely crucial to the whole purpose of the Bill. Following scrutiny in another place, the Bill introduced in this House now has in Clause 2 provisions on “General duties in relation to privacy”. I hope that your Lordships welcome the inclusion of the new clause, which crucially includes the requirement that intrusive powers should be used only when the information being sought cannot be obtained by other less intrusive means.

However, the Bill still lacks a clear statement at the beginning about the right to privacy. This is the purpose of the amendment in this group in my name. We propose inserting a new subsection at the very start of the Bill, which places an individual’s right to privacy at the forefront of the legislation. I note that this amendment is similar to Amendment 2 in the name of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, which attempts to achieve something similar, although I suggest that the amendment in my name is the more straightforward of the two options before us.

Finally, I think that this short but necessary amendment is compatible with the more detailed provisions already existing in Clauses 1 and 2.

[Lord Strasburger (LD)]

My Lords, it is a good idea to remind ourselves at times like these that we live in a democracy, and part of what defines a democracy is that our Government do not rule us and we are not their subjects; they govern on our behalf, and with our consent. So when our Government ask us to hand over prodigious quantities of our information that reveal in detail how we live our private lives, we must take great care.

We all have something to fear from these surveillance powers, for none of us can guarantee the benevolence of future Governments. The surveillance programmes run by our Government now go far beyond anything George Orwell imagined. The more personal data are dredged up and stored, the more the risk of misuse. Now that most of us carry smartphones, government agencies and the police have unprecedented access to location information about where we are 24 hours a day, seven days a week. They can also get their hands on all the information on our phones and computers: our contacts, our diaries, our emails, our web browsing, our social networking and everything we do on the internet. Their access to our lives has expanded massively in the past 10 years. In addition, there are myriad new databases that create digital dossiers about our lives which are held by private companies and public bodies, including our banks and our doctors, and the Government have access to all of them.

In short, far from going dark, as is often claimed, the police and security services are enjoying a golden age of surveillance. If government agencies were offered the choice of current capabilities or pre-internet capabilities, they would overwhelmingly prefer their surveillance abilities today. Listen to the words of Wolfgang Schmidt, who was a lieutenant-colonel in the Stasi in Berlin. When he first learned of the extent of surveillance currently carried out on their populations by the British and American Governments, Schmidt thought carefully and then said:

“You know, for us, this would have been a dream come true”.

Some proponents of bulk surveillance tell us, “You have nothing to fear, if you have nothing to hide”. It has been said that the original maker of that claim was Joseph Goebbels. Many people’s response is simply, “I don’t have anything to hide, but I don’t have anything I feel like showing you either, and the way I live my life is none of the state’s business”.

I fully support the amendments in this group. They seek to give effect to the Intelligence and Security Committee’s—

--- Later in debate ---

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I shall speak first to the government amendment. Clause 1 refers to those offences found elsewhere in the law that provide protections for privacy or safeguards against the misuse of these powers. This amendment simply corrects a minor error in the drafting; the Bill currently refers to the,

“common law offence of misfeasance in public office”.

That offence is more correctly referred to as misconduct in public office. This amendment simply reflects the usual name for the offence in common law, and will prevent confusion with the distinct civil cause of action, which is usually referred to as misfeasance in public office.

[Lord Janvrin]

I rise to speak to Amendment 15 in this group, again on behalf of the Intelligence and Security Committee. It is crucial when this House is being asked to approve intrusive powers for the state that we all have a clear understanding as to how any misuse of those powers will be dealt with. These are exceptional powers, capable of revealing the most sensitive and detailed information about private lives. The Bill already includes offences related to the unauthorised interception and misuse of communications data, and there are other relevant offences mentioned in other legislation relating to data protection or computer misuse, for example. However, the Intelligence and Security Committee has concluded that these offences, scattered across numerous Acts of Parliament as they are, are insufficient and lack clarity. There would, therefore, be considerable benefit in setting out a single offence in one single place in this Bill alongside the intrusive powers we wish to regulate.

Your Lordships will note that we have sought to include wording in this amendment relating to wilful and reckless misuse of intrusive powers. We are not seeking to make minor, accidental mistakes criminal offences; we are focusing on the most egregious abuses of investigatory powers. There have been arguments that the creation of a new overarching offence for misuse of powers would add confusion in the law, duplicate existing offences and create a “chilling effect” for those using these powers in the agencies. Neither of these arguments is particularly compelling.

First, far from adding to confusion in legislation, it is self-evident that putting a single offence for misuse in one place should simplify legislation in this area, as it avoids the need to look for offences scattered throughout the legislative corpus and the common law. Potential duplicate offences can be dealt with easily, as has already been done in Clause 231, which amends the Wireless Telegraphy Act. The clause effectively says that an offence under the Wireless Telegraphy Act which is also an offence under the Investigatory Powers Bill should be dealt with preferentially under the Investigatory Powers Bill.

Secondly, the argument that an overarching offence would have a “chilling effect” on agency staff seems exaggerated. If a certain action constitutes a criminal offence anyway, it seems highly unlikely that an agency staff member would act differently depending on where and when the legislation appeared. If agency staff are engaging in activities that are on the edge of lawfulness, it is quite right that they should be given grounds to pause for thought, at least to the extent that they take internal legal advice if they wish to continue their work. The amendment would therefore be a simplification of the law and provide suitable penalties for serious transgressions.