Monetary penalties for certain unlawful interceptions

Investigatory Powers Bill – in a Public Bill Committee at 10:15 am on 12 April 2016.

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Question proposed, That the clause stand part of the Bill.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

Again no amendments are tabled to the clause, but there are some questions that arise from it. The explanatory notes say, and it is clear in the Bill, that the clause creates a power for the Investigatory Powers Commissioner to impose fines where an interception has been carried out, but there was no intention. It relates to action that might otherwise be an offence, but the intention element is not made out. Against that background, I have some questions for the Solicitor General.

If the power applies where an interception is carried out but there was no intention to do so, it is hardly likely to have a deterrent effect because the person did not intend to do it in the first place, so what is the rationale and purpose of this provision? It is clear in schedule 1, which is related to clause 6, that the commissioner has very wide discretion in relation to the operation of the powers under the clause including, in paragraph 13, powers to require information from individuals

“for the purpose of deciding whether to serve” an enforcement notice. Thus we have a provision that is premised on a non-intentional interception that then triggers quite extensive powers to require information with penalties for failure to provide that information. Schedule 1 states that guidance will be published on how the powers are to be exercised, but what is the real rationale and purpose? Why are the powers as extensive as they are and will the Minister commit to the guidance envisaged under schedule 1 being made public?

In clause 6(3)(c) there is reference to a consideration by the Commissioner that

“the person was not…making an attempt to act in accordance with an interception warrant”,

which suggests that that is outside the scheme of the provision. We have also noted that the provision relates only to a public telecommunications system. It is in many ways supplementary or complementary and we are not questioning it in that sense, but there is a number of unanswered questions. If we are to scrutinise and probe, it would be helpful to have those answered now if possible, and if it is not answered in writing.

Photo of Robert Buckland Robert Buckland The Solicitor-General

I am grateful to the hon. and learned Gentleman for his questions. I assure him that there is a very good rationale for the inclusion of these powers. They are a replication of powers that were added to RIPA in 2011. Monetary penalty notices followed a letter of formal notice that was issued by the European Commission setting out its view that the UK had not properly transposed article 5(1) of the e-privacy directive and articles of the data protection directive. In particular, the Commission identified:

“By limiting the offence in Section 1(1) RIPA to intentional interception, the UK had failed to create a sanction for all unlawful interception as required by Article 5(1) of the E-Privacy Directive and Article 24 of the Data Protection Directive.”

The Government rightly conceded the defective transposition that had been identified and therefore the monetary penalty notice regime was established to introduce sanctions for the unintentional and unlawful interception in order to remedy the deficiency.

The hon. and learned Gentleman is quite right that it is a step down from a criminal offence, where intention has to be informed, but as my right hon. Friend the Minister for Security said when opening the debate, underpinning all of this is the importance of privacy, and the right to privacy is demonstrated in practical form by the inclusion of clause 6 and schedule 1. It is important so that we cover all aspects of intrusion because, as the hon. and learned Gentleman will know, privacy is not just about confidentiality. That is often misunderstood, particularly in the light of recent debates about injunctions. It is about intrusion into the lives of individuals, and that intrusion by the authorities in particular should be marked in some way by the imposition of some alternative sanction if it cannot be criminal sanctions. Therefore, there is a very sound rationale for the inclusion of these powers and replicating them from RIPA, and therefore I commend the clause to the Committee.

Question put and agreed to.

Clause 6 accordingly ordered to stand part of the Bill.

Schedule 1 agreed to.

Clause 7