Fifth Standing Committee on Delegated Legislation
Wednesday 3 July 2002
[Mr. Bill O'Brien in the Chair]
Draft Regulation of Investigatory Powers (Covert Human Intelligence Sources: Code of Practice) Order 2002
The Parliamentary Under-Secretary of State for the Home Department (Mr. Bob Ainsworth): I beg to move,
That the Committee has considered the Draft Regulation of Investigatory Powers (Covert Human Intelligence Sources: Code of Practice) Order 2002
The Chairman: With this it will be convenient to consider the draft Regulation of Investigatory Powers (Covert Surveillance: Code of Practice) Order 2002.
Mr. Ainsworth: The orders are made under the Regulation of Investigatory Powers Act 2000—RIPA. They were made in exercise of the powers conferred on the Secretary of State by section 71 of RIPA, subsection (1) of which requires the Secretary of State to issue codes of practice on the exercise and performance of powers and duties under the Act. The codes support the Act by providing clear and unambiguous guidance on authorising and carrying out covert surveillance and the use of covert human intelligence sources.
Section 72 of RIPA provides that any person exercising such powers or duties shall have regard to the provisions in such a code of practice and that such a code is admissible as evidence in criminal or civil proceedings. However, a person's failure to comply with a code of practice issued under section 71 shall not in itself render them liable to criminal or civil proceedings.
Section 71(3) of the Act requires all draft codes of practice issued under RIPA to be published and requires the Secretary of State to consider any representations made to him about the draft. Public consultation on the covert surveillance and the covert human intelligence sources codes of practice was conducted from 25 September to 19 November 2000. The results of the consultation exercise have been made available and are on the Home Office website.
The provisions in part II of RIPA provide for the first time a statutory framework that is compliant with the European convention on human rights for the use of covert surveillance and covert human intelligence. Covert human intelligence sources, or CHIS—
Mr. Nick Hawkins (Surrey Heath): Will the Under-Secretary give way?
Mr. Ainsworth: If I have to.
Mr. Hawkins: Of course the Under-Secretary does not have to give way, but I am grateful to him for doing so in his usual courteous way. Am I right in understanding that the Under-Secretary's brief contains acronyms that are no more familiar to him than to me and other Committee members?
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Mr. Ainsworth: I should hate the hon. Gentleman to think that I am at an advantage to him. I do not believe that I am.
Covert human intelligence sources or CHIS are known more commonly as agents, informants or undercover officers. The covert surveillance code of practice sets out how the provisions in part II of RIPA regulate the authorisation for carrying out intrusive or directed surveillance. The code does not provide guidance on how the surveillance should be carried out, which is rightly an operational matter for those concerned. The code provides guidance on the covert surveillance provisions under part II and sets out the type of information to be contained in an application for authorisation, or a renewal or cancellation of authorisation. It also provides additional safeguards and a higher level of authorisation for cases in which confidential information is likely to be acquired. Importantly, it provides guidance on the necessity and proportionality considerations that must be taken into account to ensure consistency with the European convention on human rights and the Human Rights Act 1998.
Similarly, the CHIS code of practice sets out how the provisions under part II regulate the use of human intelligence sources. It would be appropriate at this stage to correct a statement made by Lord Bach during the passage of Regulation of Investigatory Powers Bill. On 28 June 2000, during the consideration of part II in Committee in the other place, Lord Bach stated:
''The authorisation granted under this Bill will not include giving immunity from prosecution for criminal activities undertaken by the covert source. That must remain a matter for the prosecution authorities and courts on an individual basis, as now. Additionally, the purpose of an authorisation is not to give legal cover to potential criminal activities but to give a lawful basis to conduct in such a way as to make it ECHR-compliant.''—[Official Report, 28 June 2000; Vol. 614, c. 912.]
It was always the intention that the Act would not provide immunity from prosecution. The intention was that it would provide ECHR cover for the use of a CHIS. However, we have since reconsidered that, taken further advice and concluded that, in a very limited range of circumstances, it may be possible that participation in a criminal offence might be rendered lawful by virtue of a correctly authorised CHIS authorisation. Ultimately, it still remains a matter for the prosecution authorities and the courts to decide whether an authorisation would render conduct that would usually be considered unlawful as lawful.
Dr. Nick Palmer (Broxtowe): Will my hon. Friend assist the Committee by giving one or two examples of such activities that might be rendered lawful?
Mr. Ainsworth: Whether or not something is lawful will be a matter for the prosecutors and the courts. The best example that I can give the Committee relates to the laws in this country that prevent people from wearing IRA insignia or that of other organisations banned under the Terrorism Act 2000. We may authorise an intelligence source to become involved in a case and, to do so, it could be necessary for that source to wear the insignia or badges of the organisation. It may be considered that the fact that we had authorised a person's involvement in an organisation meant that the bar on them should be
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removed so that they could pretend to be a member of the proscribed organisation. On reflection, Lord Bach's statement is not as definitive as it could have been and further advice has suggested that we need to make it clear to Parliament that, in such circumstances, authorisation could effectively make otherwise unlawful activity lawful.
Norman Baker (Lewes): The hon. Member for Broxtowe (Dr. Palmer) has raised an important point. The Under-Secretary has kindly given an example of where that might apply, but the principle is important and we cannot leave it; we need to know the parameters. Although it may be permissible in the circumstances described by the Under-Secretary to wear IRA insignia, doubtless he is not authorising a licence to kill, which is the other end of the spectrum. However, there are many circumstances between those two points that we need to understand. Might it, for example, be permissible for an agent to be involved in an activity when he was part of a demonstration? An anti-globalisation demonstration, for example, could involve smashing up windows or causing graffiti to be sprayed.
Mr. Ainsworth: The hon. Gentleman is right that there is a range of activities between the most extreme actions and the example that I have used. As I have said, at the end of the day, it would not necessarily be for us but the prosecuting authorities and the courts to interpret that.
This is where we can feel for the legal parameter. In giving an authorisation, we would be authorising somebody to establish a relationship with, to stick with the example that I used, an organisation. In authorising the establishment of such a relationship, certain things might flow automatically and become necessary. When one moves into an illegal activity that may be conducted by that organisation, we are in an altogether different area and there is no way in which authorisation of the involvement of an intelligence source would have been lawful where it would otherwise have been unlawful.
I hope that that gives the hon. Member for Lewes (Mr. Baker) an indication of where the line lies. It is only in the kind of instances that I am talking about that it could be said that the authorisation would render a particular law ineffective because we had specifically told somebody to go out and establish a relationship and adopt an identity in so doing. I hope that that helps the hon. Gentleman.
Mr. Hawkins: I do not know whether this is the appropriate moment at which to intervene; I am not sure whether he is coming towards the end of his speech. In both codes of practice, the directory at the end talks about the authorisation level for the most senior person in different Departments. There are various shaded areas for various Departments—some in both columns, some in one—that just say ''No'', but there is no explanation of what ''No'' means. I should be grateful if the Under-Secretary explained to the Committee whether it means under no circumstances could any official at any level give any authorisation—in which case, it might be slightly peculiar and need further expansion in the documents—or whether it has some other meaning.
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Mr. Ainsworth: The organisations that have the ability to access those arrangements were drawn up following consultation. Where there is a ''No'', the organisation itself said that it foresaw no circumstances in which that particular aspect would be required, and therefore no further inquiries were necessary. It was effectively a decision for the organisation that ruled it out of access to that level of authorisation or for that particular area of authorisation. Therefore it is an absolute no.
Mr. Hawkins: I am grateful; that clarifies the matter and we have the Under-Secretary's reply on the record. Within each of those Departments—for example the Department of Trade and Industry—there are many bodies and only a few are listed as relevant. Where a body such as the Radiocommunications Agency has ''No'' in both columns, why does it appear when so many other bodies that are involved do not appear? I do not follow that.