Duty not to make unauthorised disclosures

Investigatory Powers Bill – in a Public Bill Committee at 2:15 pm on 21st April 2016.

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Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office) 2:15 pm, 21st April 2016

I beg to move amendment 649, in clause 114, page 91, line 42, after “not”, insert “without reasonable excuse”.

Photo of Albert Owen Albert Owen Labour, Ynys Môn

With this it will be convenient to discuss amendment 650, in clause 114, page 91, line 42, at end insert—

‘(1A) For the purposes of subsection (1), it is in particular a reasonable excuse if the disclosure is made with the permission of the person issuing the warrant or the person to whom it is issued.”.

This amendment adds a “reasonable excuse” defence to the unauthorised disclosure offence in relation to equipment interference warrants.

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

I will deal with these amendments swiftly. They deal with the reasonable excuse defence and are similar to previous amendments. I foreshadow the amendments to clause 116, which essentially relates to the same issue as clause 114. Those amendment are about a public interest defence, which we have also debated already.

My two points remain. The first is the consistency of the reasonable excuse defence. In some clauses it is there and in others it is not, and I cannot see the logic of when it is in and when it is out. Secondly, the Minister has already agreed that there must be a route for those who want to expose wrongdoing, so that disclosures can be made in the public interest where necessary. I have been pursuing those two points, and they are the same for this provision. I do not need to elaborate further.

Photo of Robert Buckland Robert Buckland The Solicitor-General

The hon. and learned Gentleman is absolutely right to refer to arguments previously made. For the record, this morning I omitted to pay my own tribute to our sovereign lady on her 90th birthday, and I wish to add it here. I am sure that colleagues will indulge that observation, and hopefully this next observation too. My right hon. Friend the Minister for Security and I agree that the world is divided between cavaliers and roundheads. We know what side we are on: our hearts lie broken on the battlefield of Naseby—but that is perhaps for another day.

We contend that amendment 650 is unnecessary. Clause 115(2)(b) provides that a disclosure is permitted if it is

“authorised by the person to whom the warrant is…addressed”.

Disclosure can also be authorised by virtue of this clause within the terms of the warrant, which will have been agreed by the person issuing the warrant and by a judicial commissioner. It is much better for an impartial senior judge to take a view on what is reasonable than it is for, say, a junior official or an employee of a telecommunications operator, no matter how diligent they might be; none the less, it is important that such people can raise concerns without fear of prosecution. That is why clause 203, in part 8, provides for an information gateway so that whistleblowers can take their concerns directly to the commissioner without fear of sanction under the Bill.

It is right that the Bill’s provisions reflect the sensitive techniques of the equipment interference agencies and maintain that it will be an offence to disclose the existence of a warrant. It is a well known and well rehearsed argument that the techniques and details of EI capabilities must be protected. The amendments in the round seek to achieve something that I submit is already well catered for in the Bill, and on that basis I ask the hon. and learned Gentleman to withdraw the amendment.

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

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 114 ordered to stand part of the Bill.

Clause 115 ordered to stand part of the Bill.

Clause 116