First Standing Committee on Delegated Legislation
Monday 30 October 2000
[Mr. Bowen Wells in the Chair]
Regulation of Investigatory Powers (Notification of Authorisations etc.) Order 2000
4.30 pm
The Minister of State, Home Office (Mr. Charles Clarke): I beg to move,
That the Committee has considered the Regulation of Investigatory Powers (Notification of Authorisations etc.) Order 2000 (S.I., 2000, No. 2563).
The Chairman: With this it will be convenient to consider the Investigatory Powers Tribunal Rules 2000 (S.I., 2000, No. 2665).
Mr. Clarke: On behalf of the whole Committee, I thank you, Mr. Wells, for presiding over today's affairs. It is nice to see old friends and acquaintances whom I have not met for such a long period.
The first statutory instrument, No. 2563, is made under section 35(2)(c) of the Regulation of Investigatory Powers Act 2000 and sets out the information that a chief constable needs to provide to the Office of Surveillance Commissioners when authorising intrusive surveillance. The procedure is exactly the same as that which already exists under the Police Act 1997 and is set out under that Act in S.I. No. 3241 of 1998.
The second statutory instrument, No. 2665, is made under section 69(1) of the Regulation of Investigatory Powers Act 2000 and sets out the rules governing tribunal procedure. It came into force on 2 October to comply with the Human Rights Act 1998. The rules provide for tribunal jurisdiction in section 65(2)(a) and (b). Broadly, those are proceedings brought under section 7 of the Human Rights Act 1998 and all complaints against the intelligence services and public authorities in respect of the use of powers in that Act.
The jurisdiction in section 65(2)(c) will be brought into force later and will require separate rules.
The tribunal is an important part of the Regulation of Investigatory Powers Act 2000, which we debated at length in Committee and on the Floor of the House. The rules provide a credible and accessible means of redress, while protecting some very sensitive material; we give weight to both those elements. With the establishment of the tribunal and the rules, we have made a significant step towards providing extra protections for the citizen in relation to the use of investigatory techniques. At the same time, the powers are essential to public safety and the fight against crime. It is difficult, but the rules strike a balance of which we can be proud.
4.33 pm
Mr. Oliver Heald (North-East Hertfordshire): I add my good wishes to you, Mr. Wells, as you chair our proceedings.
The Minister will recall that an important protection in the Act is in section 69(6), which says:
A proper trial is an important matter, but rule 9(3) seems to suggest that the tribunal can hold oral hearings at which a complainant gives evidence with his witnesses and then hold separate hearings at which the person complained against gives his evidence. I am interested to hear the Minister's comments, because I am concerned about whether the representatives of the other party will be present at each hearing. If the complainant brought his complaint and neither the person complained against nor his representative could be present, there might be no proper cross-examination and people might get away with bringing a case that was not true or properly challenged. The same danger arises if the person complained against can go to a hearing at which neither the person complaining nor his representative is present and say whatever he wishes without being challenged.
First, will there be the right to cross-examine under rule 9(3) and rule 9(4) and the ability to challenge what is said? That is fundamental to a proper hearing and consideration of a complaint. Secondly, how can a complainant correct inaccurate information that is given to the tribunal if it is not possible to cross-examine or hear what the other party says? Thirdly, is there a right to seek a review? When a determination is made under rule 13, either in favour of the complainant or against him because his case is frivolous or vexatious, because he is out of time or because he does not have a right to bring the proceedings, can he apply back to the tribunal to tell it about a piece of information that makes a difference to that?
There is a danger that proceedings will be so separate as regards each of the parties that the proper interplay, which is the purpose of having a hearing before an impartial body, will disappear. We will end up with an odd system that is greatly distorted by the need for secrecy; if it goes too far, it makes a mockery of the whole thing.
4.35 pm
Mr. Clarke: I apologise, Mr. Wells. I did not properly pick up the hon. Gentleman's second point. I am clear about his first and third points, but I should be grateful if he would repeat his second.
Mr. Heald: The first point was about cross-examination and attendance at hearings. The second question was: if that is not to happen, how is inaccurate information given by one party to be corrected by the other party? The Act suggests that it might be possible to give a summary of the evidence. I cannot lay my finger on the exact section, but there is a provision whereby a summary would be provided for the other party, who could then give his points of view and evidence on that.
Mr. Clarke: I apologise for having had to interrupt the hon. Gentleman.
As I said in my introduction, and as the hon. Gentleman acknowledged, a balance is involved. It is between individual rights and the need to protect highly sensitive information. We think that we have set out the process that will do that, but, to be frank, we are reposing a great deal in the quality of the chair of the tribunal, the judge, and that person's ability to make proper and balanced judgments on precisely these issues. A whole series of things can be done to try to mitigate or constrain that judgment. We are relying on the judge to make a balanced judgment on precisely the issues that the hon. Gentleman raises.
Mr. Heald: My second point about providing a summary of the evidence concerns section 69(4) of the Regulation of Investigatory Powers Act 2000. It states:
The power to make rules under this section includes power to make rules...
(c) enabling or requiring the Tribunal to give a summary of any evidence taken in his absence to the person by whom the proceedings were brought or, as the case may be, to the person who made the complaint.
These rules do not seem to include that. Is the Minister saying that the tribunal itself could implement that; if so, why is it included in the section that deals with the Secretary of State's rule-making powers? Why is it not in section 68?
Mr. Clarke: I was coming to that point, which was well made. I should make it clear that the duty to investigate the matter properly lies with the tribunal, in accordance with the law and these rules. In rule 9(3) and (4), the statutory instrument specifically separates the two hearings in the way that the hon. Gentleman describes, making it absolutely clear that the tribunal is not obliged to hear one particular hearing before the other. Therefore, there is no obligation on the tribunal to give a right of cross-examination in such a situation. As matters progress, the tribunal is not obliged to correct inaccurate information, but it is obliged to investigate impartially. Moreover, there is a duty on public authorities to co-operate fully with the tribunal investigation. Failure to do so would be a serious matter.
When considering a particular case—such matters would have to be dealt with on a case-by-case basis—I would expect the tribunal to give weight to the standard legal processes to which the hon. Gentleman referred. I would expect the legally qualified person in question to give serious consideration to precisely what rights exist in such a circumstance. Although there is an obligation to investigate, given the overall balance that we have described we do not think it right for these rules to oblige the tribunal to deal with this specific procedural issue. Some might argue the other way, but I believe that an explicit obligation to allow cross-examination, or to provide the summary that the hon. Gentleman describes under rule 9(4)(c), would constrain the tribunal's efforts to balance the interests of the individual citizen and national security.
On the review right of appeal, the process constitutes a review of the entire approach. The argument was powerfully made in Committee and on the Floor of the House that we need a legally qualified person of the highest integrity who can make what are difficult judgments, as both sides of the Committee and House acknowledged, and we have set out the process to deal with that. One purist might say that there should always be a right of cross-examination, but the purist on the other side of the argument might point to the right to protect our national security. A right to be present or to cross-examine might result in a mischievous approach which could prove unacceptable to the country as a whole.
Mr. Michael Jack (Fylde): For my greater education as a newcomer to these matters, will the Minister explain on what basis the tribunal mechanism with which the order deals is compatible with human rights legislation?
Mr. Clarke: In fact, the right hon. Gentleman is experienced in debating such matters in the House, but it is entertaining to discuss the human rights aspect fully. As the hon. Member for North-East Hertfordshire (Mr. Heald) will confirm, we debated the matter in detail in Committee and on the Floor of the House. According to advice that we have been given, these procedures fully satisfy the Human Rights Act requirement. A principal reason for that is that nothing in that Act disempowers the right of the state to protect national security and deal with serious and organised crime. That theme has been dominant throughout this debate and our discussion of the Terrorism Bill, which received Royal Assent just before the parliamentary recess.
The tension between the need to protect national security and the rights of the individual, to which the hon. Member for North-East Hertfordshire and I referred, is constant throughout this process, and all members of the Committee will want to get the balance right. We concluded that the best way to proceed was for a legally qualified person to assess such matters in the way that we have described.
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