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Session 1999-2000
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Standing Committee Debates
Regulation of Investigatory Powers Bill

Regulation of Investigatory Powers Bill

Standing Committee F

Thursday 23 March 2000

[Mrs Ray Michie in the Chair]

Regulation of Investigatory Powers Bill

9 am

Mr. Oliver Heald (North-East Hertfordshire): On a point of order, Mrs Michie. Yesterday, several members of the Committee were served with a legal opinion on clauses 46 to 49 that was prepared by a senior human rights barrister under the auspices of Justice. Could a Law Officer attend the Committee when we debate those clauses so that we can hear the Government's detailed legal response to that opinion?

The Chairman: That is a matter for the Minister. A Law Officer can attend the Committee. However, I shall let the Minister respond.

The Minister of State, Home Office (Mr. Charles Clarke): The hon. Members for North-East Hertfordshire (Mr. Heald) and for Sheffield, Hallam (Mr. Allan) and I attended a conference yesterday run by the organisation that prepared that legal opinion. I am perfectly happy to arrange for that opinion to be circulated to all members of the Committee. I shall take time to consider the question raised by the hon. Member for North-East Hertfordshire about a Law Officer attending the Committee. However, I shall ensure that the opinion is circulated to all members of the Committee for their information.

Mr. Heald: I am grateful to the Minister.

Mr. David Maclean (Penrith and The Border): On a point of order, Mrs Michie. I wonder if you and your co-Chairman, Mr. O'Hara, would reflect on another small, innovatory step that may assist the Committee in its deliberations. You, Mrs Michie, will know that Mr. O'Hara permitted the Minister and his officials to circulate documents to the Committee by e-mail. One is grateful for that, and it has been helpful. The only difficulty is that one has to print that material elsewhere and bring the papers to the Committee Room.

The small step that I mentioned would be to permit us to bring our laptop computers into the Room so that we could read those messages on our computer screens. One day, Mrs Michie, when the Room is cabled for the purpose, we could even conduct our affairs interactively down the line. If a Committee wished to meet at 9 am, we could conduct business from the safety and sanctity of our bedrooms.

The Chairman: The Chairmen's Panel has already discussed the matter. At least for the moment, it is not permitted.

Clause 7

Issue of warrants

Mr. Richard Allan (Sheffield, Hallam): I beg to move amendment No. 65, in page 9, leave out lines 12 to 14 and insert-

    `(a) by a judge; or

    (b) in a case falling within subsection (2), by the Secretary of State.'.

The Chairman: With this it will be convenient to discuss the following amendments: No. 66, in page 9, line 16, leave out from ``case'' to end of line 17.

No. 67, in page 9, line 29, leave out a ``senior official'' and insert ``the Secretary of State''.

No. 97, in clause 10, page 11, line 47, leave out from ``State'' to end of line.

Mr. Allan: The amendments bring us back to the question of the judicial oversight of the issuing of warrants. Under the Bill, warrants will be issued by the Executive, in the person of the Secretary of State. We had a long debate on the subject on clause 5. I do not intend to be repetitious by restating those arguments, but we wish to continue making our policy clear. We believe that judicial oversight is necessary at all stages when issuing such warrants. We shall continue to table amendments to that effect-and, if necessary, to make the point with our votes.

Amendments Nos. 65, 66 and 67 would make a straightforward change. The Bill provides for the Secretary of State to issue the warrant and, failing that, a senior official. We propose that a judge should issue the warrant; failing that, the Secretary of State should have that power. In our debates on clause 5, we made it clear that we believe that such a system can operate. The Government response was that it was not appropriate and, because it was not practical, they rejected it in principle. We, as a matter of principle, want judicial oversight of the issuing of warrants.

We believe that it is a practical solution to the problem. The amendments seek to put a marker down.

Mr. Heald: Perhaps the Minister does not intend to respond, but I should like him to respond to one point.

Mr. Charles Clarke: I beg your pardon, Mrs Michie, as I may have misunderstood. I am ready to speak about the amendments, but I was not sure whether you would first call the hon. Member for North-East Hertfordshire to speak to amendment No. 97, which is tabled in his name.

The Chairman: Amendment No. 97 is grouped with the other amendments, which is why I looked at Mr. Heald.

Mr. Heald: Perhaps we could hear from the Minister first.

Mr. Clarke: I much prefer the hon. Gentleman's words to laptop speaking, as he speaks so much more eloquently on these matters.

As the hon. Member for Hallam said, we discussed much of the substance of the amendments during the debate on clause 5. I shall not repeat those arguments as there is a genuine difference of opinion between the Liberal Democrats and other parties. I understand that difference, but I do not think that there is much to be gained by going round the houses again.

It may be helpful, however, for me to explain procedure in urgent cases, to provide clarification for the hon. Member for Hallam and to deal with points made, at least implicitly or virtually, by the hon. Member for North-East Hertfordshire.

First, the senior official who signs the warrant must be expressly authorised to do so by the Secretary of State. Secondly, the express authorisation must relate to that particular warrant only, so it is not a general power, but is particular to the warrant. Thirdly, the official who signs the warrant must endorse on it a statement that he has been expressly authorised by the Secretary of State to do so. The warrant therefore physically shows authorisation by the Secretary of State.

Mr. David Ruffley (Bury St. Edmunds): Will the Minister give way?

Mr. Clarke: I shall do so when I have explained the whole process.

Even when the urgency procedure applies, the Secretary of State must have given personal consideration to the application in order to give instructions to a senior official for the signing of the warrant. As an additional safeguard, the warrant is to last for only five days in such circumstances. I hope that explanation gives some reassurance to the hon. Member for Hallam and deals with the issues raised by amendment No. 97. The provisions have been carefully considered and authorisation and action are strictly prescribed.

The other circumstances that allow a senior official to issue a warrant relate to a request made under an international mutual legal assistance agreement. The interception subject or the premises where communications are to be intercepted must be outside United Kingdom territory. In such circumstances, a warrant may be issued if the competent requesting authorities have already issued an interception order against the subject of interception. As no decision is being made on the merits of the case, and the purpose of the warrant is solely to provide technical assistance such as satellite interception of a telephone on foreign territory, we consider it appropriate for the warrant to be issued by senior officials rather than by the Secretary of State.

On the fundamental issue raised by the hon. Member for Hallam, our view remains that the Executive should retain responsibility for the issue of warrants, and that a role exists for senior officials in the strictly prescribed circumstances that I have tried to set out.

I have explained the limited circumstances in which a senior official may issue a warrant, but strictly limited circumstances are also applicable when a senior official is allowed to modify a warrant-an issue raised in the amendment tabled by the hon. Member for North-East Hertfordshire. A senior official may modify the unscheduled part of an interception warrant only in an urgent case, when he has been expressly authorised to do so by the Secretary of State and a statement of that fact is displayed on the modifying instrument contained in the document. That arrangement is exactly the same as the urgency procedure used for the issuing of warrants. A scheduled part of a warrant may also be modified by a senior official without being referred personally to the Secretary of State-strict limitations are also attached to these provisions.

We have allowed senior officials to modify the scheduled part of a warrant to take account of changes in technology. For example, criminals may possess a number of different telephone numbers and addresses and regularly change them to avoid detection. We believe that it is important to keep up with such developments. It is no longer practical to obtain a separate warrant for each address and then a fresh warrant every time a telephone number is changed. For those reasons, senior officials will be allowed to modify warrants to take such developments into account. It must not be forgotten that officials are only allowed to modify a warrant already issued by the Secretary of State and that they are not permitted to add new names or purposes on that basis.

The discussion is not theoretical. Many criminal organisations understand the potential of frequently changing telephone numbers, and do so to seek to avoid surveillance. It is necessary to have the legal instruments in place to enable us to keep pace with what is being removed.

Mr. Ruffley: We understand why express authorisation may be needed. A Minister may be on a plane over the Atlantic or in a far-flung part of the world in which it is not possible for him or her to sign a warrant. Given the state of modern technology, is it standard practice for the drafting of a warrant to be seen, read and fully comprehended by the Secretary of State before express authorisation for it to be signed by the official is given?


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