Error reporting

Investigatory Powers Bill – in a Public Bill Committee am 2:00 pm ar 28 Ebrill 2016.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office) 2:00, 28 Ebrill 2016

I beg to move amendment 773, in clause 198, page 153, line 6, leave out from “aware” to the end of line 9.

With this it will be convenient to discuss the following: Amendment 765, in clause 198, page 153, line 6, leave out

“if the Commissioner considers that—”.

Amendment 766, in clause 198, page 153, line 8, leave out subsection (1)(a).

Amendment 767, in clause 198, page 153, line 10, leave out subsection (2).

Amendment 774, in clause 198, page 153, line 10, leave out subsections (2) to (5) and insert—

‘(2) The Investigatory Powers Commissioner may decide not to inform a person of an error in exceptional circumstances.

(3) Exceptional circumstances under subsection (2) will arise if the public interest in disclosure is outweighed by a significant prejudice to—

(a) national security, or

(b) the prevention and detection of serious crime.”

Amendment 778, in clause 198, page 153, line 11, leave out “may not” and insert “must”.

Amendment 779, in clause 198, page 153, line 12, after “has”, insert “not”.

Amendment 780, in clause 198, page 153, line 12, leave out “significant”.

Amendment 768, in clause 198, page 153, line 14, leave out subsection (3).

Amendment 781, in clause 198, page 153, line 14, leave out “has” and insert “may have”.

Amendment 782, in clause 198, page 153, line 15, leave out “not”.

Amendment 769, in clause 198, page 153, line 19, leave out subsection (4)(a).

Amendment 783, in clause 198, page 153, line 19, leave out

“and its effect on the person concerned”.

Amendment 784, in clause 198, page 153, line 20, leave out

“contrary to the public interest or” and insert “seriously”.

Amendment 770, in clause 198, page 153, line 24, leave out subsection (4)(b)(iii).

Amendment 771, in clause 198, page 153, line 25, leave out subsection (4)(b)(iv).

Amendment 785, in clause 198, page 153, line 26, at end insert—

‘(4A) In subsection (4) any publication will be considered “seriously prejudicial” where it would involve a significant risk to the life or of serious physical injury of any person.”

Amendment 788, in clause 198, page 153, line 39, leave out subsection (7).

Amendment 776, in clause 198, page 153, line 45, leave out paragraph (b).

Amendment 772, in clause 198, page 154, line 3, after “public authority”, insert

“or a telecommunications operator”.

Amendment 777, in clause 198, page 154, line 6, leave out paragraph (b).

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

We deal here with error reporting. The structure and arrangement of the clause distinguishes between serious and other errors. There is a definition of “serious” in subsection (2), and a provision in subsection (3) indicating that a breach of the European convention on human rights

“(within the meaning of the Human Rights Act 1998) is not sufficient by itself for an error to be a serious error.”

The Joint Committee considered the measures and recommended that the Government review the error reporting threshold. The Government said that they accepted that recommendation, but for my part, I have not seen anything further to that acceptance. In other words, I am not sure that anything about the review has been set out. If I am wrong, I will not pursue the point, but although the Government have accepted the principle of a review, I have not seen the outcome of that review.

In relation to the threshold, the amendments are intended to achieve a number of things. One is to make it clear that a breach of a convention right should be regarded as a serious error, irrespective of what follows from it. We obviously welcome the fact that in clause 198, the Government have responded to recommendation 57 by the Joint Committee, so that commissioners are now capable of exercising the function of error notification without the involvement of the Investigatory Powers Tribunal. That is a response to the Joint Committee, I think, and it is welcome.

However, the Joint Committee suggested that as well as informing those affected by the errors and providing them with adequate information, there should be an ability to refer matters directly to the IPT where unlawful conduct has been identified. In other words, there should also be a power to go to the IPT directly. That was recommendation 66, and it is not reflected in any revision to the clause. It would be an important means of pursuing and preventing further violations involving errors about which it was not in the public interest to inform individuals, but which none the less ought to be brought to the attention of the IPT. We notice that the Government have not made that change, and I would be interested to hear the reasons. David Anderson also supported the ability of an independent oversight body to refer cases to the Crown Prosecution Service or lodge a claim directly with the IPT, again as a way of ensuring an element of direct access. Those issues relate to the first few subsections of clause 198.

The next batch of amendments in this group deal with subsection (4). I will not take up much time with the amendment that seeks to delete

“the economic well-being of the United Kingdom”,

because it is consistent with amendments that we have tabled throughout our proceedings. We also seek to remove subsection (4)(b)(iv)—“discharge of the functions” —which would restrict subsection (4) to “national security” and

“the prevention and detection of serious crime”.

We would also tighten the test so that the wording in subsection (4)(b) would be “the extent to which disclosing the error would be seriously prejudicial to” sub-paragraphs (i) and (ii). That would restrict the exclusion.

On reflection, I will not press amendments 772 and 777 to a Division. I am minded to press amendment 773 to a vote, but if I do not win that vote, I will not press the other amendments in this large group.

Photo of John Hayes John Hayes Minister of State (Home Office) (Security) 2:15, 28 Ebrill 2016

Let us think for a moment about reality. I have never regarded myself as a prisoner of reality, for to imagine is to be human, is it not? But every Member of this House is from time to time approached by members of the public and others whose imagination has got the better of them. Among the skills that one develops as a Member of Parliament is the ability to discern the occasions on which that could either become a matter of embarrassment or absorb undue resource.

These amendments, which would create an obligation to send notification to anyone who had a complaint, however realistic or imaginary it might be, would surely not be a helpful addition to the sense of the Bill. I am sure that this is not the hon. and leaned Gentleman’s intention, but if he thinks through the ramifications of shifting the threshold as the amendments would, and requiring individuals to be notified as a matter of course of any error, no matter how small, he will see that the burden placed on those who are determined to deal with significant errors would be significant, undesirable and, in my view, unacceptable.

Photo of John Hayes John Hayes Minister of State (Home Office) (Security)

The hon. and leaned Gentleman is about to intervene to qualify that point.

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

I think the Minister is making two points. One is on the imagined wrongs of members of the public, and the other is on the burden created if notification is required for all errors. The second point is, of course, a powerful submission. On the first, the imagination of the affected person does not make a material difference. This pertains to errors found by the commissioner, so surely only the second point—that it is an undue burden—is relevant.

Photo of John Hayes John Hayes Minister of State (Home Office) (Security)

Yes indeed. I have not sought to patronise the hon. and leaned Gentleman during the Committee’s proceedings, but there is quite a difference between 19 years’ experience as an MP and rather fewer. If he thinks through what an error of transposition, the mistyping of a digit in a telephone number or a typographical error might lead to in misassumptions on the part of those with vivid imaginations, I think he will understand the point I am trying to make. Notification of those kinds of petty errors, as the amendment would require, is not only unnecessary but would lead to undesirable consequences.

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

The Minister really does have to give up the habit of suggesting that the way we probe and push the Government on, say, the threshold between serious and ordinary errors has to do with inexperience. Many of us have huge practical experience of the operation of the sorts of powers in the Bill. I dare say I have looked in greater detail at the provisions of the Acts that preceded this Bill than many people on this Committee. I do not say that in self-congratulation; it has been a burden. I have looked at these kinds of provisions in detail over very many years. Part of the purpose of this exercise is to push. The Minister makes a good point on the difference between the thresholds, but if we sit on our hands and never push, this process does not work. That has nothing to do with experience.

Photo of John Hayes John Hayes Minister of State (Home Office) (Security)

The hon. and learned Gentleman is being excessively sensitive. I was not commenting on his experience, expertise or diligence on these matters generally. I was drawing attention to the fact that those of us who have served as Members of Parliament and have dealt with the consequences of the misinterpretation that can unfortunately arise from the most minor of matters—we have all been there in our surgeries, and I think we all know what I mean—have learned that very well intentioned provisions can lead to misassumptions and even fuel vexatious complaint. I am not questioning the hon. and learned Gentleman’s right to probe—indeed, I welcome it, and he has exercised it with diligence and courtesy—but the amendment could have the unintended consequence of fuelling the kind of misassumptions and consequent vexatious complaints that we have to deal with by the nature of our job, and be quite discerning about, too.

Photo of Chris Matheson Chris Matheson Llafur, City of Chester

I am sure that I do not need to remind the Minister that both my hon. and learned Friend the Member for Holborn and St Pancras and the hon. and learned Member for Edinburgh South West are skilled, high-level criminal prosecution advocates, so they will be well aware of the ability to find fault with legislation. We should be grateful that they will not be the defence barristers finding fault with the legislation.

Photo of John Hayes John Hayes Minister of State (Home Office) (Security)

I agree, and that is precisely why, when members of the Opposition probe, it is important that my hon. and learned Friend the Solicitor General and I explain where that probing leads. The interface between members of this Committee is designed for that exact purpose. It allows us to test the Government’s arguments, to examine the Bill with care and to identify where it can be strengthened, and as part of that to find out where the Opposition, having probed, will ultimately be satisfied that the Government got it right the first time round. I have been on both sides of this process over many years; I have been in the shoes of the hon. and learned Member for Holborn and St Pancras, so I know exactly what that is all about.

In this case, drawing on my experience as a Member of Parliament, I can imagine where the amendment might lead. I do not think it is the intention, but it could well be the result. Furthermore, although certainly not intended, it is possible that the obligation under the amendment to notify a person of minor errors that did not cause significant harm to any individual would not only be burdensome—the hon. and learned Gentleman acknowledged that fact, which has to be taken into consideration—but might discourage the agencies and others from going about their work in the way that they do. If they felt that even the most minor accidental error would be notified to the individual concerned, it could inhibit or change the way that they went about their work.

Photo of John Hayes John Hayes Minister of State (Home Office) (Security)

I do not think that is anybody’s aim or intention, as the hon. and learned Lady is about to reassure me.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Westminster Group Leader (Justice and Home Affairs)

I can reassure the Minister. If he looks at subsection (9), he will see that “relevant error” in subsection (1) is defined as

“an error…by a public authority in complying with any requirements which are imposed on it by virtue of this Act or any other enactment and which are subject to review by a Judicial Commissioner, and…of a description identified for this purpose in a code of practice under Schedule 7, and the Investigatory Powers Commissioner must keep under review the definition of ‘relevant error’.”

Is he reassured that it is not just any old minor or accidental error, but a relevant error within the description of his own draftsman?

Photo of John Hayes John Hayes Minister of State (Home Office) (Security)

The hon. and learned Lady must recognise that the amendments would reduce the discretion that is already in the Bill. To that end, she is right that there is provision in the Bill for the information to enter the public domain via the report that the commissioner is bound to make on both the number of relevant errors and their seriousness, but the discretion that the Bill provides, which I am defending with some confidence, is important in excluding those purely technical, accidental, petty errors whose notification to those who choose not only to tilt at windmills but to invent the windmills they tilt at would be highly undesirable.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Westminster Group Leader (Justice and Home Affairs)

Throughout our line-by-line consideration, the Minister has been very keen on referring us to the terms of the codes of practice. Perhaps the definition of “relevant error” in the codes of practice could be addressed to remove the need to include any “minor” or “accidental” error, depending on what one means by accidental. I suggest that the Minister’s concerns may be ill-placed when we have the definition of a relevant error and should perhaps be looking at that.

Photo of John Hayes John Hayes Minister of State (Home Office) (Security)

I did not expect such a full debate on this matter, but it seems we are going to have one, Mr Owen. Imagine that a minor or technical error was notified to the individual concerned during the course of an active investigation. That has the potential to compromise the way the investigation proceeds. Relevant errors can be minor—I accept the hon. and learned Lady’s point—but the real issue is that the commissioner will have the expertise and independence to assess the relevance of the facts and decide what is in the public interest. If we are to have an oversight arrangement that affords the commissioner that kind of authority, to oblige publication as the amendment proposes would add little and might do much worse, which would be undesirable.

The intention behind amendment 776 is unclear to me. Removing subsection (8)(b) would mean that, contrary to what I just said, the commissioner would not be obliged to publish the number of relevant errors. I think that subsection is important, because we want to know the number. We are all interested in the reporting regime’s transparency and we are having a very informed debate about this part of the Bill. I am sure that that was not the intention, but it might be the effect.

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

I confess that one reason why I decided not to press amendments 772 and 777 was that when I looked at this group of amendments late last night, I realised that some of them would not have the effect that I intended. This is not a criticism, but for the record and as the Minister knows, the resources and back-up we get our respective positions on the Committee differ markedly. The Opposition work at pace with the resources we have, and occasionally on returning to amendments I have realised that they should not have been proposed.

Photo of John Hayes John Hayes Minister of State (Home Office) (Security) 2:30, 28 Ebrill 2016

I can tell that I struck a raw nerve with the hon. and learned Gentleman earlier and I want to try to rebuild the bridge that leads us back to the warm relationship we enjoy. Notwithstanding all that I have said, the clause could be perfected and I would like to look at it in the round to see what more we can do. Both the hon. and learned Lady and hon. and learned Gentleman heard my reservations about the amendments as drafted—indeed, he generously acknowledged that there are some imperfections in the amendments, which is often the way when drawing them up as a shadow Minister, as I know only too well—but they are designed to probe and they have done that successfully.

Notwithstanding my certainty on the point I made about detail, we can look at the clause in the round and make improvements. On that basis—the Bill has a long way to go—I hope that the hon. and learned Gentleman will withdraw his amendment.

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

I am grateful to the Minister for the content and spirit of his remarks. I was intending to press at least one amendment in the group, but in the circumstances I will not do so. We can all reflect on the wording of the clause, so I beg to ask to leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

I beg to move amendment 775, in clause 198, page 153, line 38, at end insert—

“(c) provide the person with such details of the submissions made by the public authority on the error and the matters concerned pursuant to subsection 198(5) as are necessary to inform a complaint to the Investigatory Powers Tribunal.”

With this it will be convenient to discuss amendment 791, in clause 199, page 154, line 21, leave out subsections (3) and (4) and insert—

“(3) In any circumstances where the Commission has identified a relevant error pursuant to section 198, the Commission must give such documents, information or other material as may be relevant to the investigation of the error to the Tribunal.

(4) The duty in subsection (3) shall be exercised without request from the Tribunal.”

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

I can be brief. The short amendments would provide that when a person is notified so that they can pursue a remedy if so minded or advised, they are given sufficient detail to do so. I think they are self-explanatory.

Photo of Robert Buckland Robert Buckland The Solicitor-General

It is a pleasure to reply on these amendments. In the spirit of the hon. and learned Gentleman’s remarks, I will deal with them as quickly as I can.

The amendments are about a submission prepared by a public authority for the commissioner that relates to an error being shown to an individual affected. With respect, I do not think that is necessary or desirable and I will set out three reasons for that. First, the IPC is already required to provide to the person such details of the error as the commissioner considers necessary. If that test is met by any information provided to the IPC in the course of the submissions made pursuant to clause 198(5), the Bill already requires that the judicial commissioner provide those details to the person. The amendment is therefore unnecessary.

Secondly, I am concerned that the amendment might inhibit disclosure to the commissioner. The submission is intended to assist the commissioner in deciding the seriousness of the error and the impact of disclosure; as such, it will contain a full and frank admission of how the error occurred and what measures have been put in place to prevent it from happening again. If the public authority knows that any submission it makes will be provided to an individual, out of necessity, to preserve the secrecy of its operating systems and methods, it may need to be less candid in its submission to the commissioner. That will force the commissioner to take a decision on whether it is in the public interest for an individual to be informed without, regrettably, knowing the full facts behind the matter.

Finally, if a case is brought to the Investigatory Powers Tribunal, disclosure of the relevant material will occur during the proceedings in the normal way. If the IPT thinks that any part of the submission should have been disclosed, it can order that to be so disclosed. The tribunal is best placed to rule on what should or should not be disclosed as the case progresses, rather than what I would regard as inappropriate disclosure before the initiation of proceedings.

Amendment 791 would remove the requirement for judicial commissioners to consult the Secretary of State before releasing information to any public authority or other person. I have made the point before and make no apology for repeating it that, given the responsibility of the Executive for the protection of the public, it is right that the Executive be given the opportunity to express an opinion on where the public interest lies. For those reasons, I respectfully invite 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 198 ordered to stand part of the Bill.

Clause 199