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6.19 pm
Mr. A. J. Beith (Berwick-upon-Tweed): I speak as a member of the Intelligence and Security Committee, but not on its behalf. The Bill has two roots. One is the need to comply with the European convention on human rights. That means that the Bill brings within its ambit many activities that are currently unregulated. Anyone who is interested in civil liberties is bound to welcome the Bill because, whatever its defects, it greatly broadens the scope of regulation. The Bill's second root is new technology and the ready commercial availability of the most sophisticated devices and systems, such as encryption and reusable mobile phones.
My hon. Friend the Member for Southwark, North and Bermondsey (Mr. Hughes) referred to two general provisions, which reproduce those in previous legislation. Several hon. Members have questioned whether Executive approval for the powers that the Bill grants is the right method, or whether a judicial mechanism for approval would be preferable.
My instinct is for a judicial mechanism. I am not comfortable in leaving such a serious incursion into civil liberties in the hands of the Executive. I appreciate that there is a rigorous system, which is exercised with great care. However, under it, the Executive authorises Executive interference in the lives of individuals. I therefore support a move towards a good system of judicial approval. We made substantial strides in that direction when we insisted on the approvals that are required under the Police Act 1997. The previous Government introduced that Act, and Ministers may claim that it provides for judicial review of Executive approval, rather than judicial approval. However, it was a substantial and valuable step in the right direction.
The second general issue that we could reconsider, because the Bill covers it, is the justification or grounds for incursions into civil liberties. Clause 5(3) contains a familiar litany, which includes
It is unfortunate that it is not always possible to expose matters to scrutiny. To reveal a specific purpose often makes it impossible to continue a line of investigation and would destroy the investigative process. There cannot therefore be public discussion of such matters. However, from time to time, we should reconsider the breadth of the definitions and the wide range of issues that they could theoretically cover.
I want to concentrate on matters that appear in a new form rather than the two examples that I have considered. A new and worrying aspect of the Bill is the Secretary of State's ability to add a range of other persons or bodies to those who already have the power to intercept communications. Clauses 6 and 29 provide that further bodies can be authorised to carry out covert investigations. That can be effected by negative resolution; the Secretary of State can simply make an order. We all know the total inadequacy of the House's procedures for challenging such processes. It is not right in principle that new bodies should be added to the list of those that engage in interception without primary legislation.
If the Government believe that the Child Support Agency should have the power to intercept communications, primary legislation should effect that. I mention the CSA, but, as I suggested earlier, all sorts of bodies could be legally defined under the Bill. They could include the rebuttal unit, the Government Whips Office, Mr. Alastair Campbell. Who knows who could be listed under the extraordinarily open-ended provisions?
I do not accept the Opposition Front Bench view that it would be appropriate to give Departments that have important responsibilities the duty of pursuing those who break the law under the Bill. The right hon. Member for Maidstone and The Weald (Miss Widdecombe) suggested that the Department of Social Security should be a telephone intercepting body so that it could tackle benefit fraud. Large-scale, criminal benefit fraud is a job for the police, who have experience, discipline and accountability, and are engaged in such cases.
Mr. Heald:
Does the right hon. Gentleman know that the benefit fraud investigation service has an organised fraud division, which deals with some large-scale benefit fraud cases? Why should that division have to make its applications at one remove?
Mr. Beith:
The bodies that exercise rare and limited powers of intercepting telephone conversations should be limited. It should not be commonly assumed that every Department has the power or can apply for a warrant to tap one's telephone. Proper law enforcement bodies can apply for such a warrant to cover those who are engaged in criminal activity. The police are the obvious people to do that in the circumstances that we are considering.
Some bodies appear to cross the line, but are designated as law enforcement bodies. The most obvious is Customs and Excise, which applies for warrants. However, my instinct is not to extend the range of bodies that can intercept communications, but to leave the job to proper law enforcement bodies, to which Departments can turn.
I apply the case less strongly to covert surveillance, simply because it covers a wider range of activities. An almost identical provision allows Ministers to specify additional bodies in that case. Government briefing notes
suggest that a wider range of bodies, for example, local authorities, is envisaged. We are considering powers that can be used on public health grounds or to deal with the imposition of a tax.
I believe that we are considering activities that already take place and are being brought within the ambit of regulation. For example, a body that dealt with public health might have to undertake some covert surveillance to check whether assurances about a specific product were soundly based. A body that dealt with tax collection might have to make covert inquiries to establish whether someone was stashing money away. For that purpose, methods are used that people do not regard as public surveillance. For example, the officer who goes undercover to ascertain whether someone is carrying out an illegal money laundering activity would come within the Bill's ambit. However, the procedure for adding bodies to the list should be more stringent than that for which the Bill provides.
A body that does not need to be added to the list because it is already covered is the Ministry of Defence, which is specified as a new body for the purposes of interception of communications. I am slightly puzzled by its appearance in the Bill. I presume that it does not appear as a cover for Ministry of Defence police; the Bill provides for them elsewhere. Is it intended to extend the use of interception by services units? Is it assumed that the Ministry of Defence will regularly apply for warrants? The way in which the Ministry of Defence has been brought into the Bill's ambit needs clarification.
Two new powers have been added to regulation. They do not relate to activities that do not happen; they regulate those activities. The Bill assumes that the activities constitute a lower level of intrusion on the citizen. I understand that assumption. They are directed surveillance and communications data.
Directed surveillance includes using devices outside a building that are normally less effective than those that are used inside a building. The latter would count as intrusive surveillance and are more rigorously controlled.
Communications data cover the acquisition of information about telephone numbers that are being dialled from a specific telephone and the location from which a mobile telephone is being used. That is not the same as listening to the conversation on those phones. I can accept that that represents a lower level of intrusion and it has rightly been brought into the Bill's ambit to provide some protection and regulation. However, in Committee we must consider whether the lower levels of authorisation are adequate for citizen protection and, indeed, whether they meet the European convention on human rights requirement, which is the basis of much of the Bill. If not, we are wasting our time enacting them in this form.
I can accept the principle that there is a difference between intrusive surveillance and some of the other kinds that are mentioned as directed surveillance and that there is a difference between listening to telephone communications and establishing that a person has telephoned a particular number on many occasions or--through his use of a mobile phone--that he frequents a particular area where he is thought to associate with other criminals.
The computer enthusiasts will have a field day with part III and those of us who are less proficient will be a little quieter, but we are bound to ask whether it will work
and whether it is right to put the burden of proof on the computer user, who must show that he or she has not lost the encryption. I regularly lose the passwords to which I have access and, although I am perhaps not a good example, that raises questions about the burden of proof. Perhaps more important is the question whether there is a better route by which to achieve that. Hon. Members have described how readily other aspects of the Bill could be undermined by the ease with which people can hack into systems and I wonder whether there is a bugging or hacking route that might be more effective than the Bill's cumbersome and very public requirement to produce a key. That will no doubt be considered at length in Committee.
national security . . . preventing or detecting serious crime . . . safeguarding the economic well-being of the United Kingdom.
Those grounds are very broad, especially the third. Unlike other broad definitions, they are not refined by case law or a process of judicial review. Cases in which judges review whether definitions are appropriate and whether a reasonable man might make them do not come to court. We rely heavily on the willingness of Secretaries of State to exercise great restraint in using the powers. They exercise such restraint, but their view of what is justified might not always be shared by everyone else; their perception is not necessarily that of the public.
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