Investigatory Powers Bill

Lord Janvrin Excerpts

Wednesday 7th September 2016 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I should like to add just a few words in support of the amendment proposed by the noble Lord, Lord Butler of Brockwell, drawing attention to the phrase “knowingly or recklessly”, which he emphasised in his short speech.

One should perhaps bear in mind that the prosecutor has to prove the case to the criminal standard—that is, to the standard of “beyond reasonable doubt”. At one time in my career, I was a prosecutor and I am aware of the significance of the burden of proof on the prosecutor in proving the offence to that standard. So the words “knowingly and recklessly” set a very significant standard that requires looking into the mind of the alleged offender. It would surely be unthinkable for a prosecutor to bring a case before a single judge or a jury without convincing evidence that the standard could be met.

As for the very interesting question of who decides, I believe—the Minister will correct me if I am wrong—that the decision is made by the prosecutor, having regard to the anticipated length of sentence and the gravity of the offence. I would have thought that the structure of the proposed amendment is right: that there ought to be a choice between the two, because some offences could justify only a minor penalty, in which case the summary process would be appropriate, but there could be other, very serious ones where prosecution on indictment would be appropriate. However, the judgment would be that of the prosecutor, having regard to what the sentence would be likely to be at the end of the day.

[Lord Janvrin (CB)]

I, too, rise to support the three amendments tabled by my noble friend Lord Butler. The point here is that he has drawn attention to this gap in offences for the misuse of bulk powers. I moved Amendment 15 earlier in Committee to take account of the fact that there was a gap, suggesting that there was a case for tidying up the misuse of these powers and the offences relating to them in one bundle. However, a better approach may well be to look at my noble friend Lord Butler’s suggestion regarding the specific area of bulk powers.

I echo the points made about the nature of these amendments. They are not about an inadvertent mistake in the heat of a fast-moving situation; they refer to someone who, without lawful authority,

“knowingly or recklessly fails to comply with the safeguards”.

The argument has been used that we should beware the chilling effect, but I am not sure that I can understand that in the context of the words “knowingly or recklessly”.

Secondly, on bulk powers, throughout the Bill we have considered the balance of trust—between the need to reassure the public about the work of our intelligence agencies, and the need to enable the agencies to use investigatory powers with confidence and at pace. It is part of that delicate balance to reassure the public that there is effective deterrence against a rogue operator, a cowboy—someone who misuses these powers “knowingly or recklessly”. That is why the Intelligence and Security Committee has been keen to debate this issue and the nature of the criminal offences, and why I welcome these three amendments as perhaps a compromise between the catch-all offence and doing nothing. Far from inducing a chilling effect, in my view, the public reassurance given by these amendments would strengthen the hand of the intelligence agencies, which are entitled to the public support they so richly deserve.

[Lord Rosser]

We are rather assuming that the Government will oppose the amendments, just as we— wrongly—assumed they would oppose the previous group. If they oppose them, we will certainly want to listen to the strength, or otherwise, of their argument, unless they are going to indicate that, in view of the pressure from around the Committee, they will take this issue away and reflect further on it.

A fairly strong argument has been made for being able to take the kind of action envisaged in the amendments. I do not know whether the Government want to argue that getting a conviction might well have to involve the disclosure of, or some information about, sensitive material that is not in the public domain. However, we certainly wish to hear the strength or otherwise of the Government’s objection to these amendments.