Draft Regulation of Investigatory Powers (Covert Human Intelligence Sources: Code of Practice) Order 2002

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The Chairman: Order. The hon. Gentleman is straying from the subject. Would he stick to the orders before us?

Mr. Hawkins: I will, but because so many DEFRA bodies are mentioned, it is important to refer to the Government's genuine intention in giving powers to people in DEFRA. I accept that there is a case for some people in DEFRA to have those powers, but too many powers and bodies are listed, and that is not acceptable. The code of practice is, as it has rightly been called, a snooper's charter.

To take another example, which relates to the Department of Trade and Industry, the Radiocommunications Agency and British Trade International are listed with a ''No''. We have clarified that point. However, under the coal health claims unit, the director is specified. I do not see how that person is likely to be involved in something headed ''covert surveillance''.

I have lived and worked in mining areas, and represented many miners when I worked as a barrister in the midlands. I am very much in favour of those who have suffered health problems from the coal industry having a unit to look after them. Many advances have been made in that respect; some since the Government came to power. However, I do not understand why the director of the coal health claims unit should have powers of covert surveillance.

The proposal goes far too far. Until the Government understand that and start listening to people such as Simon Davies of Privacy International and the hon. Member for Lewes, who has made some valuable contributions to debates on the matter—as have many of my right hon. and hon. Friends—we will not accept that the proposal should go through on the nod. Such matters should be debated not in a small Committee in a Committee Room but on the Floor of the House. I do not accept for a moment the Under-Secretary blithely saying that he and the Home Secretary have certified the proposals as being in compliance with the Human Rights Act 1998. We do not believe that they are. We believe that organisations such as Privacy International will challenge them, that they will be struck down, and that the Government will have to withdraw them.

Mr. Davies said:

    ''The lack of consultation has been a hallmark of government proposals. The original RIP bill was drafted after six hours of closed-door consultation with the internet service provider industry.''

I know a bit about the ISP industry, because, as the hon. Member for Broxtowe knows, not only am I on the council of the parliamentary information technology committee, but my younger brother works in a senior position in that industry.

Mr. Davies continues:

    ''Business groups and civil liberties advocates hardly got a look in''

before the principal Bill from which the proposals flow was drafted.

    ''The order that was to be laid before Parliament''

and that the Home Secretary withdrew

    ''appears to have been drafted in a vacuum.''

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That is simply not a sensible way to progress. It is one of the many reasons why I am sure that the proposals will fall foul of the Human Rights Act.

Dr. Palmer: I am following the hon. Gentleman's argument with some difficulty. Although he is making fairly generalised attacks on the secondary legislation and re-running attacks on the primary legislation, his only specific points relate not to actions that could take place under the proposals, but to the people who could authorise them. Any concerns that people have relate much more to what could be done than which signature would be at the bottom of the document, and I wonder whether he is misrepresenting the campaign against the document. Will he be more specific about which particular actions he dislikes that would be possible under the order?

Mr. Hawkins: I did not want to take up too much time. I had hoped that I had made it clear that, although there are good parts in the code of practice, the list of individuals is part of it. If we had simply allowed it to go through on the nod, there would be no challenge about whether those were the appropriate organisations and whether anyone in some of the organisations concerned should have powers for covert surveillance and human intelligence. I give the hon. Gentleman an example. The texts of the two codes of practice are similar, but I refer to the one on covert surveillance. It states:

    ''An authorisation under Part II of the 2000 Act will provide lawful authority for a public authority to carry out surveillance.''

Traditionally in this country we have been very concerned to restrict the number of people who have the power to carry out surveillance. In most cases, a warrant from a High Court judge is required, as in the case of, for example, telephone tapping. The security services have always had such powers, as have the police, the fraud squad, and even, sometimes, the Revenue, but not little administrative bodies with executive managers from bits of DEFRA. That is why organisations such as Privacy International are so worried.

I quoted paragraph 2.1 of the general rules on authorisations. That is what we are discussing; the list of people who will be able to sign at the bottom of a piece of paper, as the hon. Gentleman says. Perhaps they will even have a rubber stamp, so that they can say afterwards that they did so.

As I said, some good safeguards are provided. What is most wrong is who is involved. That is the main reason for our concerns. That is not to say that we do not have other concerns. If the hon. Gentleman wanted me to, I could spend a long time going through every clause, but I shall not take up the Committee's time. Our objections are much wider. They go to the principle of the matter, which is why I set out the case as I have.

Mr. Ainsworth: What principle? The hon. Gentleman read out several objections, distorted some of them, and said, ''Our objections are much wider.'' To what principle does he object?

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Mr. Hawkins: The principle is extending the rights of surveillance to a huge new raft of people. I give the Under-Secretary another example. Heading No. 5 is ''Authorisation procedures for intrusive surveillance''. Intrusive surveillance is defined in paragraph 5.1. The definitions are incredibly wide:

    ''Intrusive surveillance is defined in . . . the 2000 Act as covert surveillance that:

    is carried out in relation to anything taking place on any residential premises or in any private vehicle; and . . . b) involves the presence of an individual on the premises or in the vehicle or is carried out by means of a surveillance device.''

Lots of other definitions follow.

Mr. Ainsworth: What is the level of authorisation?

Mr. Hawkins: I have been through the levels of authorisation, because they are listed at the back. As the Under-Secretary knows, he and I completely disagree about these matters. It would not benefit the Committee if we were to go through this clause by clause, although I could do that. Instead, I will allow other hon. Members to express their concerns; I know that the hon. Member for Lewes, in particular, shares several of my party's worries. However, I wish to make it clear that we are against this.

We think that the Government should have withdrawn these measures, along with all of the others that they withdrew last week. As they have withdrawn all of the others, we do not understand why they do not withdraw these. This entire matter—and everything that flows from this Act—should be debated on the Floor of the House.

5.6 pm

Norman Baker: One of the mysteries of politics in this place that I have yet to unravel is how hon. Members who felt extremely strongly about matters such as civil liberties when they were in opposition—and who, I suspect, would have objected tooth and nail to measures such as these—feel able to pass legislation of this kind with equanimity when they reach Government. I am referring to Back Benchers as well as those who hold ministerial office. I do not understand the intellectual process that occurs that allows that to happen. Labour Members may wish to enlighten me about that, because I would like it to be explained, and it is directly relevant to this order.

To answer the Under-Secretary's intervention of a few seconds ago, this is not a matter of principle; it is a matter of degree, which is different. This may be a semantic point, but there is nothing wrong in principle with allowing certain categories of persons to conduct surveillance on others for certain purposes.

Mr. Hawkins: I agree that matters of degree are involved here, but I hope that the hon. Gentleman agreed with me when I said that we start from the basis of the questions of principle that were set out by Mr. Davies of Privacy International.

Norman Baker: I do not want to get too worried about semantics, and the hon. Gentleman will probably agree with most of what I have to say, so he need not be overly concerned about the matter. However, I want to explain myself in my own way by saying that my point addresses a matter of degree.

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Who should be able to authorise surveillance? What surveillance is authorised? How intrusive is it, and what are its purposes? Those are the questions that need to be asked, and we must measure whether the order is appropriate in the light of the answers to them.

It appears that many bodies can authorise surveillance, and that surveillance seems to me to be extensive; I will come back to those matters in a minute. For what purpose is surveillance authorised? That is defined in the primary legislation, and that definition is repeated in the notes in the Library, for example. The definition talks about the purpose of detecting crime or preventing disorder. It also refers to uncontroversial purposes, such as national security and the economic well-being of the country; I assume that, as they are normally defined, they are uncontroversial purposes, and they are certainly uncontroversial so far as I am concerned.

However, it is controversial to allow surveillance for the purpose of detecting crime; surveillance is allowed not for the purpose of detecting serious crime—of crime that is threatening the fabric of the country or that could destabilise the Government or cause major financial catastrophe in the City—but merely for the purpose of detecting crime. My definition of crime includes things like shoplifting, and the primary legislation, which predates these orders, says that surveillance is allowed for the purpose of preventing and detecting crime. That is an extraordinarily wide definition.

Surveillance is also allowed for the purpose of preventing disorder. What does that mean? That could simply refer to half a dozen protestors who are out on the streets somewhere trying to smash a window at a McDonald's restaurant.

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