My Lords, I am conscious of the strength of feeling that has been expressed about this matter, but let me make it clear that we do not accept that there is what was termed “a gap” in the criminal sanctions with respect to bulk powers. This matter was discussed during earlier Committee sittings, as the noble Lord, Lord Butler of Brockwell, observed, under reference to Amendment 15, which proposed a new offence of unlawful use of investigatory powers. I understand the development that has taken place and the context of the amendments that have now been spoken to. On that earlier occasion, I referred to the civil penalties and criminal offences that apply in respect of the misuse of the powers in the Bill. In particular, I pointed out that a whole series of statutory offences is listed under Clause 1. But over and above that, it is important to bear in mind the availability of the offence of misconduct in public office, which is also referred to. I underline that because that offence would apply to instances of misuse of bulk powers in appropriate circumstances, and would certainly embrace circumstances in which there was a knowing or reckless misuse of such powers.
I also note in passing that, only two days ago, the Law Commission issued a consultation document entitled Reforming Misconduct in Public Office, so that the matter could go out for further consideration. The Law Commission highlighted that the problem is that, often, there are overlapping offences which obscure
the use of the offence of misconduct in public office. I rather fear that the introduction of a further statutory offence would simply create a further overlap with regard to such offences. We are at an early stage. The Law Commission has only just introduced that consultation document. But we will take account of it in this context. Although I quite understand the point that was raised by the noble Lord, Lord Butler, and indeed the ISC, in this context, we consider that misconduct in public office is available to deal with the instances that have been referred to.
Before the summer, in response to Amendment 15, we referred to the “inadvertent operational impact” that the creation of further statutory offences could 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 they conduct their work. We recognise the concerns raised about the potential misuse of investigatory powers but, as I say, the creation of new offences may unnecessarily inhibit agency staff and limit their ability to operate with confidence. We do not disagree that intelligence officers who are exercising these most sensitive and, indeed, intrusive powers should consider their actions carefully before using them, but we 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.
While deliberate misuse of these data can already incur criminal liability—indeed, we suggest that reckless misuse would be sufficient—the creation of a new offence would send a powerful and potentially damaging message to the men and women of our intelligence services. It may be taken to imply that more is required of them than is already the case and that innocent mistakes will in future result in criminal prosecution; for example, if they are construed as the product of reckless behaviour. I appreciate that it is not the noble Lord’s intention that this should occur but we must consider not just the letter of the law but what it will be taken to mean by those on the front line. There is a real risk that this amendment, if accepted, would suggest that they are not trusted to do their jobs, and that it could foster a culture of risk aversion in the agencies at a time when they are dealing with complex and evolving threats. That is certainly the concern expressed by the heads of the intelligence agencies, which I know they have communicated directly to members of the Intelligence and Security Committee.
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 that involve serious misuse. These matters are brought into the public domain. In appropriate cases disciplinary action may be taken, up to and including dismissal, or civil or criminal liability incurred. The extent of that criminal liability will be determined by the prosecution deciding what form of offence should be prosecuted, at what level and, indeed, at what level of court, for the purposes of penalty. Although misuse is exceedingly rare, intelligence agency
staff are conscious of their obligations; indeed, from time to time they have been dismissed for misusing systems.
When these points are considered together, 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—or, indeed, reckless behaviour. We therefore suggest that new criminal offences are unnecessary and potentially confusing, and, on the face of it, would adversely affect the operation of the agencies. In these circumstances, I invite the noble Lord to withdraw his amendment.