Draft Regulation of Investigatory Powers (British Broadcasting Corporation) Order 2001 and (Designation of Public Authorities for the Purposes of Intrusive Surveillance) Order 2001

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Mr. David Wilshire (Spelthorne): I, too, have no objection in principle to the orders. I confess to being at a disadvantage because I did not serve on the Standing Committee that considered the general principles behind them. I should also confess that I always consider such issues with a prejudice—I am against intrusive surveillance until someone can persuade me that it is absolutely necessary. My approach to the orders is therefore to consider whether that prejudice can be supported by genuine factual concerns.

Like most other law-abiding citizens, I am happy to discover that the BBC is doing everything in its power to enforce the collection of the licence fee. I do not accept—I am sure that no one in the Room would accept—that people should get away with sponging off the rest of us by not paying their due. I welcome all attempts to address that problem, provided that they do not go too far. Under regulation 27A(1)(a), surveillance

    ``is carried out by means of apparatus designed or adapted for the purpose of detecting the installation''.

Clearly, that is right, but, as a non-technical person, it occurs to me that such surveillance might pick up extraneous information, or information other than that which is necessary to carry out a conviction. I am sure that safeguards exist, and I would be grateful to be told what they are. Even if there are safeguards, however, information that was not strictly relevant to not paying the licence fee could still come to the attention of certain people. What would happen to such information? More importantly, if extraneous information were gathered in such a way, would it be admissible in court as evidence in a case that had nothing whatever to do with the non-payment of a licence? I am anxious for the Minister to clear up that question. As a matter of principle, I could not support the idea that someone could receive other information and then say, ``Oh good. Look what we have got. Now we can make use of it.'' However, if a person had suspicions, he would be justified in approaching the courts to say, ``We have a suspicion. May we investigate?'' It would worry me if information that had been happened upon could be used.

New section 27A(3)(b) states:

    ``the authorised surveillance is proportionate''.

Obviously, there will have been a debate about what is proportionate. I do not wish to re-open that issue because the House has decided on the Act. Although there is a definition of what is proportionate, will the Minister say who will decide what is proportionate under the statutory instrument? Such a person will use what the House has decided as the rules for determining what it is proportionate, but who will be the person in the BBC who will be charged with saying, ``Is this reasonable?'' or ``Is this going too far?''.

New section 27(4)(b) states that conduct

    ``is carried out by persons described in the authorisation''.

Will the Minister say who in the BBC will be charged with monitoring the people who are given the powers and ensuring that they conduct themselves in a reasonable, realistic and fair manner? Surely to goodness, there will be a monitoring procedure to ensure that such powers are not abused? Having said that, I am not, in principle, opposed to the order.

As for the other draft statutory instrument on surveillance, I should like a couple of points clarified. Article 2, on a designated public authority, states:

    ``The Home Office is hereby designated for the purposes of section 41''.

The Minister explained that the real reason for that is because the Prison Service must be covered by some provision. Will he reassure me that, the statutory instrument having been approved to deal specifically with the Prison Service, it cannot then be used in the future to tag on matters other than the Prison Service? If the Home Office wished to take other action, would that require a new statutory instrument that we could debate so as to satisfy ourselves that it was reasonable?

I am uneasy that all ranks of officers in the Prison Service can apply for authorisation. I am not persuaded that every last prison officer should be put in that position. Will the Minister consider carefully whether such powers should be confined to people of seniority, those with a length of service and those who have some skills in that activity, rather than extended to those who, by joining the service, are therefore allowed to apply for authorisation?

Another matter makes me uncomfortable. I could be accused of being pedantic, but I must ask: why is the Prison Service to be given such powers? I racked my brains, but I could not imagine prison officers rushing around the country snooping into our lives. However, when I heard the explanation of cells, it made a great deal of sense. Is it worth exploring the possibility that the order—because it is aimed specifically at the Prison Service and is designed so that surveillance may be carried out on Prison Service property—should make clear that such powers can be exercised solely within the prison estate, be it privatised or not?

That would make it absolutely clear that someone could not call on prison officers—if the police were short of manpower, for example—to snoop on the rest of us. I may be being pedantic, vut nevertheless that possibility has not been excluded. I am sure that that is not Minister's intention. Will he consider how he can make it clear that that could never happen?

4.49 pm

Mr. Charles Clarke: With regard to the BBC, I am grateful for the general support of the hon. Members for North-East Hertfordshire, for Taunton (Jackie Ballard) and for Spelthorne (Mr. Wilshire). I hope that I can provide the clarification that the latter wants. The only purpose for which authorisation can be given under the BBC order is collecting licence fees. I repeat the examples that I gave of offences under sections 1 and 1A of the Wireless Telegraphy Act 1949—having a television without a valid licence and for assessing or collecting sums payable in respect of television licences. Those are the only grounds on which authorisations can be given, and they are congruent with the anxiety of the hon. Member for North-East Hertfordshire to ensure that people who evade their responsibilities cannot sponge off the rest of us. The order puts the matter under a proper system of authorisation.

I shall add some colour to what I said earlier about granting authorisation. I said that authorisations are given by people who hold certain senior positions in the licence fee unit of the BBC. To add to that, anyone who performs the role of head of sales or marketing in the television licence management unit of the BBC, or anyone more senior in that unit, shall have the power to grant authorisations. In practice, it is intended that authorisations will be granted on a day-to-day basis by the head of the unit, who reports to the BBC's director of finance, property and business affairs, a member of the executive committee, which is the BBC's most senior executive body. The heads of sales and marketing are second in command to the head of the licence management unit, and it is anticipated that that would usually be the case. Authorisations can therefore be granted only by three people in the BBC, all of whom have direct contact with operations on the ground.

As is the case for other aspects of the legislation, it will be the chief surveillance commissioner who has a statutory responsibility to oversee the BBC's licence detector activities and to whom complaint can be made about its operation. We are confident that that will operate effectively, and we believe that it will have the effect that I described earlier of ensuring that the Human Rights Act 1998 applies to this aspect of surveillance.

The hon. Member for North-East Hertfordshire made some general comments about scrutiny and proportionality. It will be for the BBC people whom I have identified to make the judgment and, in the event of a complaint, the chief surveillance officer will have the statutory responsibility to check that the circumstances are proportional. One of the towering achievements of the hon. Gentleman in the RIP Committee was to secure a position whereby we drew together some of the surveillance commissioners covering different aspects of the regulatory regime, precisely in order to achieve some common purpose and practice in such areas, such as judging proportionality in a way that is consistent across different forms of surveillance.

Mr. Wilshire: Will the Minister comment on my anxieties about extraneous information being gathered and used for other purposes?

Mr. Clarke: I can say explicitly that, as is the case for all matters under the Act, information collected extraneously cannot be used other than for the purposes of the Act. It will not be legal to use information that has been wrongly collected for purposes not specifically related to the Act. That was one of the important considerations of the Bill.

I should like to make several points about the Prison Service aspect. On the Home Office approach, in response to the hon. Member for Taunton (Jackie Ballard), we have suggested that the action must be reasonable, proportionate and necessary, which is one of the conditions that we have discussed throughout. To judge that, a dedicated Home Office unit, headed by a senior civil servant, will advise the Secretary of State, as is the case for other aspects, on whether an application is reasonable, proportionate and necessary.

The hon. Member for Spelthorne is right. The intention and purpose of our approach relates to the prison estate rather than to more general activities. The matter is slightly more complicated than that, as transit issues, for example, could arise in imaginable circumstances. The concept is entirely a basis for surveillance of the prison estate. As for the practicalities to which hon. Members have referred, they will be spelt out in a code of practice whereby the Prison Service would be under a duty to comply with the regulation. It will deal also with contracted-out prisons.

Speaking in a debate in the other place, my hon. Friend Lord Bassam offered to write more fully about private prisons because important issues had been raised. I shall write to members of the Committee about that, too. The functions under the Act can be exercised in relation to private prisons either locally by the controller or his team. That depends on the functions confirmed under the prison rules, regionally by the area manager's office or centrally and perhaps preferably by Prison Service headquarters. The reason for that is that anyone who holds an office in the Prison Service is authorised under the order. In contracted-out prisons, persons will be able to apply to carry out surveillance because they are part of HM Prison Service.

In proposing the order, we acknowledge that it is important to achieve absolute clarity both about particular ranks and the precise relationship between contracted-out prisons and the established Prison Service. That is why, when introducing the order, we said that we would produce a code of practice to deal with the specific nature of what is involved as it is more complicated because of the contracted-out process. Internal procedures within the Prison Service will deal with that situation, too.

To be frank, we introduced the order now because we considered that it would be convenient for hon. Members to discuss the two expansions of the RIP Act at the same time. As for the code of practice and ensuring that the relationship between contracted-out prisons and the Prison Service is absolutely right, we shall write to hon. Members.

Mr. Heald: As the Minister knows, we believe that both expansions are sensible. Is there any risk that private sector prisons will not be covered? We would not want there to be a hostage problem when sensible and intrusive surveillance could not be used.

Mr. Clarke: I can give the hon. Gentleman and the Committee an absolute assurance on that matter. We believe that authority should lie only with officers of the Prison Service, and there is an issue about how authority is applied in such cases. However, there is no possibility of contracted-out prisons being outside the regime. I urge the Committee to support the statutory instruments and help to develop the scrutiny that is important to regimes in this country.

Question put and agreed to.


    That the Committee has considered the draft Regulation of Investigatory Powers (British Broadcasting Corporation) Order 2001.

Regulation of Investigatory Powers (Designation of Public Authorities for the Purposes of Intrusive Surveillance) Order 2001


    That the Committee has considered the draft Regulation of Investigatory Powers (Designation of Public Authorities for the Purposes of Intrusive Surveillance) Order 2001.—[Mr. Charles Clarke.]

Committee rose at two minutes to Five o'clock.

The following Members attended the Committee:
Pike, Mr. Peter L. (Chairman)
Ballard, Jackie
Clarke, Mr. Charles
Hall, Mr. Mike
Heald, Mr.
Hughes, Mr. Simon
Love, Mr.
Morgan, Ms Julie
Roy, Mr.
Stewart, Mr. Ian
Thomas, Mr. Gareth R.
Twigg, Mr. Derek
Wilshire, Mr. David

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