Investigatory Powers Bill — House of Lords, 2016-09-05
Topic: Civil Rights
Sally Rachel Hamwee (Liberal Democrats, Centre to centre-left): My Lords, I will speak also to Amendments 191B, 191BA, 191C, 191D, 191E, 191F, 191FA, 191G, 191GA, 191GB, 191H and 191J—on this occasion, I do not think that the importance is in inverse proportion to the number of amendments, as one often finds Taken together, these amendments would give the Investigatory Powers Commissioner greater scope to report errors—this is not unrelated to the previous amendment—and create a more level approach by removing many of the strict limitations which would prevent many errors being reported. The objective is to ensure that the protections in place for the agencies do not restrict those for the general public in learning whether an error involving them has been made. I must thank the organisation Big Brother Watch for drawing several points to our attention The first two amendments simply seek to bring more objectivity to the exercise Amendments 191C and 191D deal with when an error should be reported. According to the Bill, that should happen when it is "a serious error" and, "it is in the public interest for the person to be informed" I suggest that the default should be that a person who has been the subject of an error should be informed unless there is a good reason for him not to be. The clause does not say that the person should be informed unless it is in the public interest for the person not to be informed. In the debate on the previous amendment, the Minister talked about prejudicing an ongoing investigation. Without consulting my noble friend Lord Paddick, I would regard that as being something that would be in the public interest to create a block on information. We have the phrase "serious error". To me, "serious" risks an ever-higher threshold being set on reporting an error. One of my amendments suggests the term "not trivial" as an alternative that would provide a proportionate response to the issue Amendment 191E would delete Clause 207(3). Subsection (3) provides that, "the fact that there has been a breach of a person’s Convention rights (within the meaning of the Human Rights Act 1998) is not by itself sufficient for an error to be a serious error" The requirements of the Human Rights Act are a particular consideration under Clause 2, which is the privacy clause. I would regard any breach of the convention rights as something about which to be very careful. Article 8, the right to private and family life, is not absolute; there may be interference with it in accordance with the law where it is necessary in a democratic society, in the interests of national security and given other matters set out in the article. I have two questions, and it looks from the way he is writing notes as though they should be addressed to the noble and learned Lord, Lord Keen. First, how does subsection (3) affect Clause 2, the privacy clause? Can the Committee be assured that that clause is in no way weakened by Clause 207(3)? Secondly, is Clause 207(3) included in order to meet the wording of Article 8, which is that it does not apply if the breach is "in accordance with law"? Is this clause bringing that situation within the scope of being in accordance with law Amendment 191F requires the Investigatory Powers Commissioner to consider matters which are the subject of Clause 2, the privacy clause. This part of the Bill is not referred to in Clause 2. The safeguards to protect privacy are referred to in Clause 205(5) but that is in connection with a review under Clause 205. How does the privacy safeguard apply to this clause Amendments 191G and 191GA—probably best read the other way round by noble Lords who are managing to follow this, which is not a stream of consciousness but a stream of amendments—would provide that the details which the commissioner considers necessary for the exercise of the right to apply to the tribunal and "other details" should be made public and be proportionate. If an error is made, why should information about it be limited to details necessary for an application to the Investigatory Powers Tribunal? There may be other rights in play, and should the person not be informed? People do not always want to exercise a right, but nevertheless if an error has been made they should have the information about it. The second of this pair of amendments, which refers to proportionality, may not be quite right in its drafting, but I am sure that the noble and learned Lord will understand that I am seeking to find the balance between individual rights and national security and so on I turn to Amendment 191GB. Clause 207(9) provides that an error which prompts action under the clause is an error by a "public authority". For this purpose, do public authorities include telecommunications officers? They should do, which is why the amendment adds them if they are not already there, because those operators carry out a very significant amount of surveillance work on behalf of public authorities On Amendment 191H, we are told that errors must be of a description identified in a code of practice. The important term here is "code". The codes of practice are variable: they are not part of the primary legislation. I know I am going to be told about scrutiny of them, but they limit what will be a relevant error and I am a bit doubtful about the sort of scrutiny one is able to give to this type of instrument or document. You would have to be very diligent and on the ball to pick up the connection with this clause Finally, Amendment 191J suggests that the Investigatory Powers Commissioner should include these matters in a report—Clause 210, which we are coming to, provides for periodic reports—and make recommendations. I dare say I might be told that he could, of course, make recommendations arising from his reviews of relevant errors and of the definition of a relevant error, but it would be appropriate to link the reviews to the statutory report. I beg to move.