Restriction on use of section 93 of the Police Act 1997

Investigatory Powers Bill – in a Public Bill Committee at 10:45 am on 12th 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)

I make the same point again: the clause is a good provision but appears to lack any enforcement mechanism or sanction, so if it could go into the basket of clauses that are being looked at in relation to sanction, I will be grateful.

Photo of Robert Buckland Robert Buckland The Solicitor-General

The clause confirms that section 93 of the Police Act 1997 may not be used to authorise conduct where the purpose of the proposed interference is to obtain communications, private information or equipment data and the applicant believes the conduct would otherwise constitute an offence under the Computer Misuse Act 1990, and the conduct can be authorised under an equipment interference warrant issued under part 5 of the Bill. So it does not prevent equipment interference being authorised under the Police Act where the purpose of the interference is not to obtain communications and other data—for example, interference might be authorised under the Act if the purpose is to disable a device, rather than to acquire information from it.

That reflects the focus of this Bill. We are trying to bring together existing powers available to obtain communications and communications data. I emphasise that the measure does not prevent law enforcement agencies from using other legislation to authorise interference with equipment that might otherwise constitute an offence under the Computer Misuse Act. For example, law enforcement agencies will continue to exercise powers under the Police and Criminal Evidence Act 1984 to examine equipment that they possess as evidence. The result of this clause is that all relevant activity conducted by law enforcement agencies will need to be authorised by a warrant issued under part 5 of the Bill.

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

Based on what the Minister has just said, it may be that it is anticipated that any attempt to use other legislation in breach of this provision would automatically be refused. That is the bit where there might need to be some clarity, because in effect it will not be an application under this legislation; it would be an application under different provisions, so does this operate as a direction to any decision maker that that is an unlawful use of another statute? That is not entirely clear. I think that that is what is intended. If it is, that is a good thing, but I am not entirely sure that a decision maker would say, “I am prohibited by law from exercising powers available to me under other legislation.” I leave that with the Minister because it may be something that can be improved by further drafting.

Photo of Robert Buckland Robert Buckland The Solicitor-General

I thank the hon. and learned Gentleman for that intervention. While I will answer the specific question, I think it is important that I set out the fact that this provision is not the only means. What we are dealing with here is part 5 and the double lock and the enhanced safeguards. If any agency or authority fails to use new part 5 or PACE, for example, in other circumstances, they will be committing an offence under the Computer Misuse Act. Public authorities are no different from any other individual or body: if they are not complying with the existing legal framework by this or other means, they fall foul of the law themselves. I will endeavour to answer the other points raised about sanction but I urge the Committee to agree that the clause stand part of the Bill.

Question put and agreed to.

Clause 12 accordingly ordered to stand part of the Bill.

Clause 13