Investigatory Powers Bill — House of Lords, 2016-07-11
Topic: Law and Crime
Richard Keen (Conservative, Centre-right): My Lords, I begin with Amendment 15, which raises the issue of creating a new criminal offence. This was initially discussed in the other place at earlier stages of the Bill’s passage In the other place the Government made it clear that each of the powers in the Bill is already subject to one or more civil penalties or criminal offences for misuse. Part 1 has always contained a number of privacy protections that are central to the Bill, and it now makes clear the existing offences and sanctions that apply in respect of the different powers, such as the offences that relate to the unlawful interception or unlawful obtaining of communications data. In addition to the strict safeguards that are explicit in Part 1 of the Bill, there are a number of other additional offences that exist elsewhere in statute but apply equally to any misuse of the powers In response to the concerns raised in the other place and with sympathy for the Intelligence and Security Committee’s desire for clarity, the Government listened carefully and tabled amendments that now more explicitly refer to the relevant offences set out in other statutes, such as the Computer Misuse Act 1990, which applies to equipment interference, and the Data Protection Act 1998. These put beyond doubt the penalties that would apply in the event of deliberate wrongdoing by a member of a public authority On the basis that there are existing offences that apply to every power in the Bill, the Government are reluctant to introduce a new criminal offence that would lead to confusion, as it would overlap or duplicate those set out elsewhere. Perhaps more simply, it would be unnecessary. The powers in the Bill are varied, each with their own distinct regimes. If we sought, as was suggested by the noble Lord, Lord Janvrin, to create one offence to fit them all, it would either be too broad and catch too much, or by being too narrow actually miss something and result in a less effective sanction. It could also lead to a lack of legal clarity and potentially hamper the effective enforcement of existing offences. The point is that one size does not always fit all There is a further concern. The heads of the three intelligence agencies have written to the Home Secretary and to the ISC outlining their very real concerns about the inadvertent operational impact this proposal may have. The officers working within our intelligence agencies are entirely committed to the mission of keeping the country safe. They are professional and ethical in the way in which they conduct their work. We recognise the concerns raised about potential misuse of investigatory powers, but the creation of a new offence may unnecessarily inhibit agency staff and limit their ability to operate with confidence and at pace against the numerous threats we face We do not disagree that intelligence officers who are exercising these most sensitive and intrusive powers should consider their actions carefully before using them, but I have seen no evidence that the dedicated men and women of our security and intelligence agencies give such matters anything less than the most careful consideration. I can quite easily see that Parliament’s creating a new offence that appears to be targeted solely and squarely at our intelligence agencies could have a detrimental impact on the confidence, morale and willingness of those persons to carry out the often dangerous yet vital work we ask them to do on our behalf. Moreover, the Government are clear that if anyone in a public authority were to act contrary to their obligations under the Bill, the matter would be taken extremely seriously. The current commissioners already ensure that they investigate and report publicly on the very infrequent cases of errors which involve serious misuse. In appropriate cases disciplinary action may be taken, up to and including dismissal, or civil or criminal liability incurred When these points are considered collectively, I hope noble Lords will agree that this puts beyond doubt the severe penalties that would apply in the event of deliberate wrongdoing by a member of a public authority. A new criminal offence is therefore wholly unnecessary and potentially confusing, and would adversely affect the operation of the agencies Amendment 16 seeks to extend the criminal offence of unlawful interception to "private" postal services. This is aimed at capturing those services which cater to more specialist clients; for example, companies that provide services to banks or lawyers. The noble Lord, Lord Paddick, referred to DX as an example of such a company. I understand the reason for the amendment and support the principle that the offence should apply to this type of company. However, these companies are already caught by the existing provision. The Bill describes a "public postal service" as one that, "is offered or provided to the public, or a substantial section of the public" This includes companies that specialise in providing services to bespoke sectors, such as the legal profession or banks Moving on to Amendment 17, in the name of the noble Lord, Lord Strasburger, Clause 3 sets out the offence of unlawful interception. This is a vital safeguard that relates to one of the most sensitive powers provided for in the Bill. It underpins the protections for privacy that are fundamental to the Bill. I am afraid I cannot accept an amendment which would limit or even undermine that safeguard. The amendment would limit the offence by setting out circumstances in which it would not apply; for example, it provides a public interest defence to the offence. It would not be appropriate to allow someone to intercept the communications of another—without lawful authority—because that person takes the subjective view that it would be in the public interest. I note and agree with the observations of the noble Lord, Lord Grabiner, and the noble Baroness, Lady Hayter, in this regard. It would not be right to reduce this strong safeguard, which exists to protect individuals.