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

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Mr. Jonathan Djanogly (Huntingdon): I very much concur with the hon. Member for Lewes and my hon.

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Friend the Member for Surrey Heath. Of course we support the Government's attempts to crack down on crime, access terrorist traffic and the rest, but that should not lead to excessive Government control-freakery, which is what we see here. The Act should not be used to give powers to the egg marketing inspectorate. I fully support the concept of a code of practice, and some decisions will be very important. The concept of proportionality is rightly included in the code. It states:

    ''This involves balancing the intrusiveness of the use of the source on the target and others who might be affected by it against the need for the source to be used in operational terms. The use of a source will not be proportionate if it is excessive in the circumstances of the case or if the information which is sought could reasonably be obtained by other less intrusive means.''

We have to consider whether the bodies elaborated on by other hon. Members are the appropriate bodies to take decisions on proportionality. It is not a simple definition.

Mr. Ainsworth: The hon. Gentleman is a new Member and may be at the start of a long parliamentary career, and I would hate him to be misled. I repeat that we are not giving those powers to these organisations. Surveillance is not illegal in this country, and these organisations have been doing these things for many years with no oversight and no safeguards.

It would be perfectly legitimate for the hon. Gentleman to say that under no circumstances should these organisations be allowed to involve themselves in surveillance, but he should not misrepresent the facts. We are giving powers to organisations that have been doing those things for years, and those things are not illegal.

The Chairman: Order. When the hon. Gentleman quotes from the documents, it would help Hansard and Members if he were to give references and page numbers.

Mr. Djanogly: Thank you, Mr. O'Brien. I was quoting from paragraph 2.5 on page 5 of the code on intelligence sources. I appreciate what the Under-Secretary says. However, I am not saying that surveillance should not be undertaken; it is a question of who authorises it and on what basis such matters as proportionality are considered. In my view, a judge would be an appropriate person to take such decisions.

The subject of vulnerable individuals was raised eloquently by the hon. Member for Lewes. Juvenile sources were mentioned in passing, but at paragraph 3.14, the code states:

    ''On no occasion should the use or conduct of a source under 16 years of age be authorised to give information against his parents or any person who has parental responsibility for him.''

That brings home to us the sensitivity of the issues that we are talking about and the sorts of people who could be affected.

At paragraph 4.19, the code provides that authorisations should be reviewed at certain times. Authorisations last for 12 months, which is a long time; I believe that 12 weeks would be a more appropriate time before authorisations are reviewed.

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As for ongoing authorisations, I note that the code suggests ''regular reviews''. However, nothing is set down about when reviews should take place, and I should be interested to hear how the Under-Secretary defined ''regular''. In any event, the timing of reviews, as well as their number, should be tightened up.

5.29 pm

Dr. Palmer: I have a couple of points to make. The hon. Member for Surrey Heath seemed to be attempting to win the sympathies of what one might call libertarian organisations without actually opposing reasonable surveillance. He attempted to do that not by attacking surveillance activities, but by attacking the people who authorise them. In practice, that is a spurious argument because, in the real world, if three people in an organisation are authorised to sign such documents, they will sign them when they are approached by whoever needs surveillance to be carried out.

The hon. Member for Surrey Heath and his colleague, the hon. Member for Huntingdon (Mr. Djanogly), are trying to clog up the system with bureaucracy. The hon. Member for Huntingdon even suggested that a judge might be required. In other contexts, the Conservative party criticises delays in the law but, for these purposes, we are suggesting that judges should be re-engaged with a case every 12 weeks, even when someone clearly has been involved in criminal activity and the situation has not changed after 12 weeks.

The hon. Member for Lewes seemed to get into a tangle on the issue of surveillance of minor crime and gave examples of shoplifters and habitual speeders. I asked him to give realistic examples of cases in which surveillance would be helpful in catching a shoplifter or habitual speeder. He gave the example of someone wearing an item that they had stolen, but as the Under-Secretary said, that is not the issue. It is perfectly legal—I understand from his later comments that the hon. Member for Lewes accepts that it should be perfectly legal—for a police officer or an official of the egg marketing board to follow a person around to see whether he is wearing something illegal.

Norman Baker: Like a chicken costume.

Dr. Palmer: Indeed. Unlikely though it may be, the hon. Gentleman's example is irrelevant.

Where it is genuinely helpful to undertake the sort of surveillance foreseen in the order—intrusive surveillance is foreseen only in relation to serious crimes—the provisions are entirely appropriate. I have yet to hear of a realistic example in which their use would be inappropriate; an example when we should allow a criminal not to be caught because it would go too far in terms of undertaking surveillance.

I have one query for my hon. Friend the Under-Secretary. Where the source might have to breach some law to undertake surveillance, it is suggested that, for self-protection, they should consult the legal officer of whatever organisation is authorising the

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activities. That is entirely sensible advice, but it will not provide absolute protection. If I were the source, I should feel somewhat nervous if I went to the legal officer of an organisation and said, ''I am thinking of carrying out an initiation rite to join the hell's angels. Do you think that will be OK?'' and the legal officer said, ''Yes, I think it will be OK.'' If I am subsequently taken to court, and the court takes a different view, I could be sent to prison. I am not sure what the answer is, but I hope the Under-Secretary will agree that there is some difficulty there. I am sure that he will correct me if I am wrong, but I do not think that the authorising body has the power to grant full immunity, in which case, the source will be at some risk. Perhaps my hon. Friend will comment on that problem.

5.34 pm

Mr. Ainsworth: I have been in Parliament for 10 years. As I get older, it is only infrequently that I am appalled by the debates in which I am involved and some of the comments that I hear. Only infrequently have I felt that I was in a debate that brought no credit to this place and our scrutiny of legislation. I am in precisely that situation now. It happens less often in Committee than in the Chamber, but this is one of the most appalling debates in which I have ever been involved.

I am not aware of whether the rules of Parliament mean that you can pull me up sharp, Mr. O'Brien, for speculating on whether comments have been made deliberately, accidentally or as a result of misunderstanding the order. However, we are dealing by and large with intelligent people, which adds to my dismay. I will not go into all the details. I promise all members of the Committee that I will write to try to answer the questions that they have raised. It is clear that we are talking not about differences that surround the detail but about misrepresentation of what has been proposed.

Let us take surveillance first, because the overwhelming majority of the case made has been against surveillance. The easiest way for me to get into the central argument which should be teased out is to use the opportunity provided by the hon. Member for Lewes when he accused me of creating a red herring. He said that I had ruled out the circumstances that on this occasion I said were relevant.

If hon. Members read the code on surveillance, they will see that authorisation is not required for an officer who, in conducting his beat, notices something by chance and decides to consider it further by following an individual or whatever. That is absolutely right. We are not talking about serious crime. Let us stick with the police for a moment. In the normal course of an officer's duty, he must pursue what he believes to be criminal activity. However, an awful lot of police work carried out subsequent to that or on the basis of information gained leads to further investigation. Surveillance is central to police work.

At the moment, there is no code of practice to cover surveillance. If an officer noticed and followed a suspicious individual in the course of his duty, he would not need any authorisation. However, the code

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would be relevant if he subsequently went back to his station to use whatever methodology existed to make his report, and in doing so triggered an investigation that required surveillance. Such activity has taken place since the police service first existed. It is disgraceful to suggest that we are authorising something new now, as that activity is central to police work. It is what the police do.

The code says that a level of authorisation must be given for the work that takes place in the second phase. It sets that level and ensures that records are kept. It ensures that the reasons that were given and the consideration of that surveillance are recorded. The record could potentially be produced in court in evidence for the defence or for the prosecution and could therefore prevent abuse from occurring. It gives a frame of reference within which the police can do their job, which they have been doing since Peel set the service up back in the 18th century.

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