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

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Dr. Palmer: Will the hon. Gentleman give a realistic example of a crime that he does not feel to be sufficiently serious for an investigation of this kind to be justified?

Norman Baker: Yes, I will. There might be a crime to do with motor vehicles. The powers could be used if someone is suspected of regularly speeding, or whatever. There are a number of low-level crimes for which persons may receive relatively low penalties if they are subsequently convicted. Such minor crimes would not justify the authorisation of such measures.

Dr. Palmer: I asked for a realistic example, by which I meant one where surveillance of this type would assist in clearing up the crime. I do not think that that would be the case with regular speeding.

Norman Baker: What would be a serious crime? It might be possible for a shoplifter to be subject to surveillance to demonstrate whether the suspicions of the store that they had stolen a particular item were accurate. They could then be detected with that item on their person, or wearing it. That is how surveillance could be effective in detecting less-serious crime. Using the kind of surveillance set out in the order and the code of practice for such ends would be wholly unjustified.

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Mr. Ainsworth: The hon. Gentleman is trying to suggest several different things at once. He may be doing so on purpose or otherwise; we need to try to unravel matters. He said that surveillance should be used only for the detection of serious crime, but intrusive surveillance can only be authorised for terrorism and serious crime. We are talking about directed surveillance. Is the hon. Gentleman suggesting, as he appears to be, that a police officer should not be allowed to follow somebody whom he expects of being involved in criminality; not minor or serious crime, but criminality? Should a police officer be allowed to follow and keep under surveillance a criminal? The hon. Gentleman appears to be saying that he should not.

Norman Baker: The Under-Secretary is confusing matters, deliberately or otherwise. First, he will know that the definition in the Terrorism Act 2000 referred to crime, not serious crime, and his Government—

Mr. Ainsworth: We are not talking about terrorism.

Norman Baker: With respect, the Under-Secretary mentioned terrorism and the record will show that.

The Terrorism Act 2000 contained a definition of crime and the Government rejected all attempts by the Opposition to insert the word ''serious'' before ''crime''.

Mr. Ainsworth: I am certain that the hon. Gentleman is not doing it deliberately, but he must know that the Committee is supposed to be discussing the order and the code of practice. We are talking about directed surveillance, which has gone on for years and is not illegal. Under RIPA, intrusive surveillance, including telephone taps, has only ever been envisaged for the detection of serious crime, terrorism and economic threats against the state that were tantamount to terrorism.

We have had this discussion in other Committees. It is a question of directed surveillance. Environmental health officers, tax inspectors and police officers are now, and have been for many years, allowed to keep people under surveillance. Is he suggesting that they should not be allowed to do so? He certainly appears to be.

Norman Baker: I shall try to make some progress.

Mr. Ainsworth: Will the hon. Gentleman answer the question?

Norman Baker: I will if the Under-Secretary lets me make some progress. I have taken six interventions so far and I am still trying to answer his previous intervention, when he asked me two questions.

The Under-Secretary and the Government fail regularly to distinguish between crime and serious crime in primary legislation. In a previous intervention, he asked whether it was wrong for a police officer to follow someone if they suspect of committing a crime. Of course it is not.

Mr. Ainsworth: Ah.

Norman Baker: The Under-Secretary's own code expressly omits that situation. It is not covered—[Interruption.]

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The Chairman: Order. Can we stop this banter from sedentary positions?

Norman Baker: The code of practice expressly recognises the situation where an officer on duty may come across someone whom he suspects is guilty of crime. Under those circumstances the officer is permitted to follow that person without the code kicking in. No one is challenging that and it is a red herring for the Under-Secretary to suggest that they might be.

I have said that I am unhappy with the wide definition that allows the statutory instrument to kick in. I am also unhappy about the persons who are able to authorise covert surveillance or the use of human intelligence sources. The hon. Member for Surrey Heath listed some of them. For the sake of clarity, let me refer to annex A, which mentions the horticultural marketing inspectorate. Why on earth would it want to carry out covert surveillance? More to the point, why in a democratic society that recognises civil liberties should it have such a power?

The hon. Member for Surrey Heath referred to the coal health claims unit. Presumably, if it wants to authorise surveillance, it is because the person to whom claim applications are made has decided that they do not believe the applicant and want to check up on him. That is what that is about. The same person is judge and jury in their own court; would it not be convenient if they can refuse claims? They have a direct incentive. That is the wrong person to authorise an investigation of such a nature. If there is a suspicion of fraud, it should be taken to the police. They should deal with it, not the person who runs a claims unit.

The third example is that of local authorities, which are, at least, democratic institutions. We will not have Tesco-type people doing this, which the Under-Secretary would doubtless have had in the Police Reform Bill. However, listed under local authorities is the head of paid service or, in his absence, a chief officer, who is given authorisation

    ''for when a vulnerable individual or a Juvenile is to be used as a source''.

Vulnerable individuals and juveniles are defined in the regulations, if I can find the relevant page; I cannot, so I shall give way to the hon. Member for Surrey Heath.

Mr. Hawkins: The hon. Gentleman rightly raises the same point that I raised on the coal health claims unit. I wonder whether many of the Labour Members who are not—surprise, surprise—on this Committee are the same people who rightly campaign on behalf of constituents who are miners or retired miners. For example, I wonder whether the Home Secretary or his Ministers have explained the implications of the measure to the hon. Member for Bolsover (Mr. Skinner). If they have not, perhaps we should.

Norman Baker: That is a welcome suggestion. I am always happy to chat with the hon. Member for Bolsover when I meet him in the Corridor and elsewhere.

To return to my point, if the chief executive is away, any chief officer of a local council—for example, the director of leisure services or of cemeteries—can

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authorise covert human intelligence surveillance involving vulnerable individuals. Paragraph 3.13 states:

    ''A 'vulnerable individual' is a person who is or may be in need of community care services by reason of mental or other disability, age or illness and who is or may be unable to take care of himself, or unable to protect himself against significant harm or exploitation.''

Is not that interesting? A director of cemeteries in a local council will be able to authorise the use of a vulnerable person under the code. [Interruption.] The Under-Secretary may laugh, but that is the consequence of his statutory instrument. That is the case, even if Government Members do not like it. The measure is far too wide in defining who can authorise such matters.

Then there is the matter of how the surveillance will be undertaken, which touches on the question from the hon. Member for Broxtowe. The code does not make it entirely clear; in so far as it is clear, it is rather worrying. For example, there is the question of whether covert human intelligence sources are allowed to use technical equipment. Indeed, they are. Paragraph 4.41 on page 19 of the code states:

    ''A source, whether or not wearing or carrying a surveillance device and invited into residential premises or a private vehicle, does not require additional authorisation to record any activity taking place inside those premises or vehicle which take place in his presence. This also applies to the recording of telephone conversations other than by interception''.

Therefore, telephone conversations can be recorded—at one end, anyway—as long as it is not done by interception. Presumably, another person, employed by the council and authorised by the director of cemeteries, can tape the other end of the conversation, put the two tapes together and have the whole of the conversation.

What do we have? We have authorisation for this process of detecting crime or preventing disorder at a very low threshold. We have almost anybody in the world—the egg marketing board, the director of cemeteries at the local council or whoever else happens to be in the list—able to authorise such activity, and we are able to use vulnerable individuals who we recognise are unable to protect themselves against exploitation to record telephone conversations or what is happening in a house with a hidden microphone. I am sorry, but that sounds like a police state; it is a step too far.

The Under-Secretary always over-eggs his pudding; he did so during consideration of the Proceeds of Crime Bill, and he has done so again today. He always latches on to a good idea. He says, ''Let's make sure that we catch the criminals,'' and we all want to do that. He then adds, ''Let's use technology to do that and to keep up with their methods.'' However, he cannot help but give the state too much power against the individual. Therefore, there are significant questions about the threshold, who can authorise and how it is implemented; I am not satisfied about the provisions.

I should like to draw one or two small points to the Under-Secretary's attention, and I ask for a response. Paragraph 1.7 on page 3 of the ''Covert Human Intelligence Sources'' code of practice states:

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    ''Members of foreign law enforcement or other agencies or sources of those agencies may be authorised under the 2000 Act in the UK in support of domestic and international investigations.''

What is that about? Which foreign law enforcement or other agencies can invoke the code of practice to carry out snooping operations on UK citizens? Let us have some details from the Under-Secretary when he responds on paragraph 1.7.

Paragraphs 2.2 and 2.3 come under the heading ''General rules on authorisations''. Paragraph 2.2 states:

    ''Part II of the 2000 Act does not impose a requirement on public authorities to seek or obtain an authorisation where, under the 2000 Act, one is available (see section 80 of the 2000 Act).''

However, paragraph 2.3 continues:

    ''Public authorities are therefore strongly recommended to seek an authorisation''—

even though the previous paragraph said that they did not have to—

    ''where the use or conduct of a source is likely to interfere with a person's Article 8 rights to privacy by obtaining information from or about a person''.

Why does not the Under-Secretary simply say that public authorities must seek an authorisation? Paragraph 2.2 says that they do not have to, but paragraph 2.3 says that it is a bit dodgy if they do not. Why is that not cleared up?

My last point relates to what constitutes surveillance. I have some technical questions, and I ask the Under-Secretary to write to me if he does not have answers to them. These days, it is much more complicated to establish what surveillance is. In the old days, it was just a matter of someone following someone else; 20 or 30 years ago, someone might even have used a microphone or a pocket cassette recorder. Now, however, there are many ways of establishing what people are saying. For example, a satellite can photograph someone in their garden with such accuracy that one can tell who they are and what they are doing. Another of the many techniques available involves pointing a laser beam at a window to measure its vibrations so that one can tell what is being said inside. Do the regulations cover such a device? Could someone use one to establish what has taken place? Would such interference require a level of authorisation available only to the police and the security services, or could the director of cemeteries authorise such surveillance as part of their operations?

I hope that I have made it clear that the orders have prompted significant worries, which Labour Members should share if they are true to what they believe and to what they have stood for in every election, at least until 1997. I hope that they will think seriously before voting for the orders.

I have asked several questions, which merit proper answers from the Under-Secretary. I hope that he will take the issue seriously and ask himself how he would view the orders if he were in opposition and without the voluminous brief that he has doubtless received from Home Office officials.

5.24 pm

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