Standing Committee F
Thursday 30 March 2000
[Mr. Edward O'Hara in the Chair]
Clause 25
Conduct to which part II applies
9 am
The Minister of State, Home Office (Mr. Charles Clarke): I beg to move amendment No. 162, in page 26, line 37, leave out from `investigation' to end of line 40 and insert
`or a specific operation;
(b) in such a manner as is likely to result in the obtaining of private information about a person (whether or not one specifically identified for the purposes of the investigation or operation); and
(c) otherwise than by way of an immediate response to events or circumstances the nature of which is such that it would not be reasonably practicable for an authorisation under this Part to be sought for the carrying out of the surveillance.'.
The Chairman: With this it will be convenient to take Government amendments Nos. 163 to 166.
Mr. Clarke: With this group of amendments, we are attempting to clarify the definition of ``directed surveillance''. In order to deal with a number of concerns, including those raised on Second Reading by the hon. Member for South Dorset (Mr. Bruce), we want to make the circumstances in which it would be beneficial to obtain an authorisation more easily understood.
The definition of ``directed surveillance'' has given us considerable problems. We all know what sorts of cases are meant—those investigations or operations, planned beforehand by the police and others, in which surveillance teams follow targets covertly to obtain information about what they are doing, where they are going and who they are meeting. We also know that directed surveillance is not limited to those cases in which it is likely that information about targets will be obtained.
If an operation is likely to pick up private information, it should be capable of being authorised, regardless of whose information it is. However, it has not been easy to put that in legislative terms. Our first attempt, seen in this draft of the Bill, has confused those operational practitioners whom we consulted—as the hon. Member for South Dorset pointed out on Second Reading. It was not clear to them where the distinction lies between general observation, which forms part of their normal duties, and covert, directed forms of surveillance that may infringe someone's private and family life. That distinction needs to be put on a statutory basis to satisfy the requirements of the European convention on human rights.
The amendments are intended to give a much clearer and more precise definition of ``directed surveillance''. That will make it easier for the police and other agencies to know when and in what circumstances they should seek authorisation for their activities. It will ensure that the provisions cover criminal investigations of the sort undertaken by the police and Customs and Excise, and intelligence-gathering operations of the sort carried out by security and intelligence agencies. It also makes it clear that obtaining information about a person's private and family life is the key factor in deciding whether an authorisation should be obtained. An authorisation can be applied for if surveillance is likely to gather such information about a person, whether or not he is the target.
Finally, the amendments ensure that unplanned surveillance, which could not be foreseen and authorised in advance, is not unlawful. Occasions will inevitably arise when, for instance, a police officer sees a person acting suspiciously and will follow that person to see whether he is acting criminally. Such everyday police work is essential to the prevention of crime and the detection of offenders. We must not introduce legislation that could hinder it, but such activities do not lend themselves to being authorised in advance.
Mr. A. J. Beith (Berwick-upon-Tweed): I welcome the Government's amendments. We are concerned about the definitions in this part of the Bill. We have on tabled amendments that are directed to related problems, particularly on the reasonable expectation of privacy.
It is a difficult line to draw, and legitimate law enforcement activity can reach the boundary that the Minister described. We all know, from talking to police officers, how tiresome their lives can be if their job is surrounded by bureaucratic procedure. However, an important civil liberty must be protected—the right of privacy. If we do not get it right in the Bill, the Bill will not be proof against the European convention on human rights, the Home Secretary's certificate will lose its value and problems will be taken to the courts as people seek proper protection of their civil rights. I welcome the Government's attempt to achieve a better definition that is beneficial to the citizen.
Mr. Clarke: I appreciate the right hon. Gentleman's comments and commend the amendment to the Committee.
Amendment agreed to.
Mr. Richard Allan (Sheffield, Hallam): I beg to move amendment No. 167, in page 26, line 42, leave out from `that' to end of line 3 on page 27 and insert
`interferes with any person's privacy in circumstances where that person has a reasonable expectation of privacy'.
The Chairman: With this it will be convenient to consider amendment No. 168, in page 27, line 11, leave out subsection (5).
Mr. Allan: As my right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith) said, we are concerned about the definitions contained in part II as we take surveillance seriously as a potential means for the invasion of individual privacy. The amendments would secure a better definition of ``intrusive surveillance''. The Minister said that there were concerns about the definition of ``directed surveillance'' and tabled an amendment inserting an alternative form into the Bill. We feel that the current definition of ``intrusive surveillance'' also requires reconsideration.
The definition contained in the clause refers to
the presence of an individual, or of any surveillance device, on any residential premises or in any private vehicle.
That describes a set of circumstances but does not relate to the original mischief that has caused the Bill to be introduced—compliance with ECHR article 8. We have considered judgments on breach of ECHR article 8 and have tried to take a definition from them. Our definition is based on circumstances in which a person
has a reasonable expectation of privacy.
It can cover a wider range of circumstances, but it is more appropriate in the Bill than reference to
any residential premises or . . . any private vehicle.
People can have a reasonable expectation of privacy in many settings. For example, the definition of ``intrusive surveillance'' should cover offices, workplaces and other premises that are similarly used but which are not defined as residential premises. Legitimate placement by the authorities of a device or individual in such premises for surveillance purposes is just as intrusive as it would be in residential premises. Our definition is one of principle and is therefore better than the current one, which tends to limit intrusiveness to specific circumstances. Amendment No. 167 would change clause 5(3)(a) accordingly and we hope that the Minister will tell us whether he believes that there is a better way of defining where intrusion has occurred.
Amendment No. 168 would remove subsection (5) from the clause. Its objective is also to expand the definition of ``intrusive surveillance'' by changing the definition of ``directed surveillance''. It deals with the other side of the matter, as subsection (5) specifies circumstances in which surveillance
is not intrusive unless the device is such that it consistently provides information of the same quality and detail as might be expected to be obtained from a device actually present on the premises or in the vehicle.
We understand that subsection to mean that lower-quality devices would not be defined as intrusive.
The amendments seek not to prevent surveillance but to broaden the definition of ``intrusive surveillance'' and to ensure that the Bill is as compliant as possible with ECHR article 8. They would require the application of a higher test for permission to conduct intrusive surveillance, which may be operated internally, instead of the lower-level test that we suspect will currently be applied in relation to authorisations for directed surveillance.
Mr. Charles Clarke: I understand the amendments' purpose and what the hon. Gentleman is seeking to do. I note also that the proposals follow on from points made on Second Reading by the right hon. Member for Berwick-upon-Tweed, who expressed particular concerns about offices. The Government believe that there is a choice between lessening criteria for the authorisation of intrusive surveillance to cover all crime and restricting them to cover serious crime in the interests of national security, economic well-being and so on, which is the course that we have adopted. I want to explain why we have chosen that and to convince the hon. Member for Sheffield, Hallam (Mr. Allan) of why the amendment is impractical in character.
I appreciate hon. Members' concerns to protect individuals' privacy, but the practicalities are serious. The amendment would increase the stringent requirements attached to the authorisation of intrusive surveillance to a much wider range of activities, currently covered under the provisions for directed surveillance. Although there would be no problem in identifying in advance operations involving residential premises—that was one of the points that the hon. Gentleman made—or private vehicles, the same could not be said of mobile surveillance, which makes up the majority of operations.
The amendment would mean, for example, that the police would have to know before each covert surveillance operation began where their target was likely to go and whether he might find himself in circumstances in which he or another could have a reasonable expectation of privacy. Generally, the police and other operatives would not have the information and therefore could not make the judgment. They would not know at the start of the day whether their target would spend the day dealing in drugs or meeting criminal associates to plan an armed robbery, or whether he was meeting a friend, going for a drink and a meal and then visiting the home of another friend. They would not have such information at the start of the process. It is not possible to expect the police and others conducting surveillance to decide beforehand on the expectation of privacy of the target and associates. That is why, fundamentally, there are serious and practical questions about the amendment.
The level of intrusion is proportionate to the seriousness of the offence or other activity being investigated. That is why we have restricted the use of intrusive surveillance so that it can be conducted only on the grounds of serious crime, national security or the economic well-being of the UK. However, the definition provided in the amendments would incorporate a significant number of other activities undertaken by other public bodies. That was the intention of the amendments, reasonably and explicitly. The activities would range from investigating tax evasion and benefit fraud to health inspections of restaurants.
No central records are kept of the number of covert surveillance operations conducted each year. However, police estimates suggest that they alone undertake more than 60,000 operations across the range of activities. In addition, operations are conducted by Customs and Excise, the security and intelligence agencies, many departments and local authorities. The activities are deliberately covered by the Bill but not classed as intrusive surveillance. To expect many of those cases to require prior approval would bring the statutory functions to a standstill, significantly restricting the activities of the police and others.
Instead, we need clear guidelines that operatives can easily follow, setting out the specific circumstances and locations in which people have a legitimate and reasonable expectation of privacy. People generally have the greatest expectation of privacy in their homes and private vehicles when going about their everyday lives. We have responded to the special protection given by article 8 to a person's home. Those are the instances in which we have restricted action to serious matters and in which cases have been given the highest protection.
A person's rights under article 8 must be carefully weighed against the purpose for which surveillance is required in other situations. They are dealt with as directed surveillance. The most intrusive categories must be fenced off and made subject to the most stringent safeguards.
I hope that I have explained to the hon. Member for Sheffield, Hallam why we have taken those decisions. I also hope that he will be prepared, on consideration, to beg to ask leave to withdraw the amendment, although I entirely understand that his motivation was positive in seeking to clarify the situation as I have tried to do.
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