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

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Mrs. Betty Williams (Conwy): Will my hon. Friend enlighten me on one point? Will the provisions help in a situation where wildlife crime is on the increase? In north Wales, the police have assigned a sergeant to look into wildlife crime. I have had long discussions with that gentleman, and he tells me that current legislation does not allow him to do his work properly. Will the provisions help him? Wildlife crime tends to be a Cinderella crime as far as policing is concerned, but many hon. Members are concerned about it.

Mr. Ainsworth: It all depends on what level of surveillance the police would like to use to combat such crime. Wildlife crime does not trigger the ability to employ intrusive surveillance, so if the police officer concerned wanted to tap people's telephones he would not be allowed to do so. Such measures are only available to combat terrorism, serious crime and threats to the economic well-being of the country.

However, what the officer will be able to do and what he is able to do now—if he is telling my hon. Friend that he cannot, that is just not true—is to keep under surveillance the people whom he suspects of being involved in such criminality. He currently has no code of reference—there is no check-up on such surveillance and no systematic requirement that he keep records of what he is doing and why or of who authorised it—but he can still do it. The code allows him to continue to do it, but requires him to consider the proportionality of it and whether or not it is the only way of doing his job, and he must get an authorisation at an appropriate level.

The provisions do not open things up; they provide a framework. The hon. Member for Lewes is desperately trying to prevent us from exposing the fact that he is suggesting that they do something completely different. We will give him an opportunity to stand up and say that he understands that surveillance has been carried out by all these organisations since before I was in Parliament and that the measures provide a code and safeguards for the conduct of that surveillance and not the original authorisation for it.

Norman Baker: I begin by telling the Under-Secretary that at the beginning of the debate I did

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not oppose the principle. He will see that in the record. I talked about degree. I accept that a code of practice is a good idea; no one has disputed that, neither myself, nor the hon. Member for Surrey Heath. Although such surveillance has always taken place—if the Under-Secretary wants me to say that on the record, I will do so—he has not accepted that he is bringing the measures before the House now because he has been advised by his officials that since the passage of the Human Rights Act 1998, a code is required to justify the actions taken and prevent conflict with that Act. Therefore, by definition, bodies outside the Human Rights Act will not be covered by this protection and those inside will be. Doubtless that is the advice that he has received. It is his choice, therefore, whether to include the egg marketing board and all the other bodies. He has chosen to draw the measure wide.

Mr. Ainsworth: The hon. Gentleman is right in saying that nothing in the measures will prevent other people from keeping people under surveillance. That will not, in itself, be illegal. However, he is also right in saying that if people who have not been authorised or have not gone through the proper process of authorisation set out in the codes keep people under surveillance, they may well be found to be in breach of the Human Rights Act 1998 when the matter comes to court and the case will collapse as a result. The hon. Gentleman is right in saying that we need to provide a framework and code of reference within which people should operate. We must also ensure that we keep the information about the decisions that we take so that no one can change them after the fact. Those decisions must be reportable and usable in a court of law if necessary, to be able to make judgments on whether the surveillance was proportionate and appropriate or whether someone's human rights were infringed. I thank the hon. Gentleman for exposing the fact, but it does not marry with a lot of things that he said earlier.

Let us turn to the question of organisations. We should knock a certain matter on the head. The hon. Member for Lewes said, ''Shock, horror! The Government are going to give the coal health claims unit the right to spy on sick miners.'' Plenty of hon. Members represent miners, ex-miners and coalfield communities, and they know the facts of the cases. The coal health claims unit uses surveillance to monitor former coal miners suffering from diseases related to their mining employment when the claimant's case has gone to court to establish whether his claim is fraudulent or exaggerated. That happens now and has always happened, but we do not know whether or not it has happened when it should and whether the surveillance is proportionate and ECHR-compliant.

Nothing has ever been put in print to say that the coal health claims unit should use surveillance only when it has considered other ways in which to conduct the investigation and when surveillance is proportionate to the fraud that is supposed to have been committed. The coal claims unit has not previously been told that it should not use surveillance when it is not proportionate or unnecessary. Nothing currently imposes such a regime. The unit may impose it on itself internally—I

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do not know how good or bad an organisation it is—but, as the hon. Member for Lewes knows, the unit already practises surveillance without the requirement that we are introducing.

The hon. Member for Surrey Heath seems to hate the Department for Environment, Food and Rural Affairs—

Mr. Hawkins: I said that my constituents did.

Mr. Ainsworth: The hon. Gentleman says that his constituents hate DEFRA. Because of that, he thinks that DEFRA should not be allowed to conduct surveillance in any circumstances. The Environment Agency comes under DEFRA and uses surveillance during operations to combat the illegal smuggling of toxic waste across international frontiers. Is he saying that the Environment Agency should cease to use surveillance in those circumstances?

Mr. Hawkins indicated dissent.

Mr. Ainsworth: The hon. Gentleman shakes his head and says, ''No, it should not.'' In that case, should the Environment Agency be required to keep records that it can produce in court, which show that it has used surveillance only when it is proportionate and necessary to the investigation—yes, or no?

Mr. Hawkins: Of course the answer is yes. Nothing that I said should be taken as undermining that. The Under-Secretary must not misrepresent what I, the hon. Member for Lewes or my hon. Friend the Member for Huntingdon said. We understand that there are useful safeguards in the code of practice. The record will show what my specific point about the Environment Agency was, and why I am unhappy with that part of the legislation. The code of practice gives powers to some vague category called executive managers, who may have been in the organisation for only a couple of years but have won that title. An area of similar concern is the rail industry, in which things have been signed off that should not have been. I should have thought that the Under-Secretary and his colleagues in the Home Office might learn from some of the things that have gone wrong in that industry.

Mr. Ainsworth: If we were dealing with such details, we would be having an altogether different discussion. I am a little annoyed with the way in which the hon. Gentleman and the hon. Member for Lewes have conducted themselves today. I hope that we shall be able to fight the widespread misrepresentation of RIPA. Over the coming months, we need a sensible, measured conversation about the issues before us and about the order that was withdrawn, and I hope that the hon. Member for Surrey Heath will take part. I would welcome any communication from the Opposition Benches to the effect that Liberal or Conservative Members were prepared to join a serious debate about the level of authorisations. It should be a sensible debate, which does not shackle those who investigate crime and protect our communities from public health threats, environmental threats and all the other dangers with which they constantly deal. I hope that we can have a

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sensible debate, rather than the misrepresentation that we have seen.

Norman Baker: On a point of order, Mr. O'Brien. The under-Secretary has used the word ''misrepresentation'' four times. Will he say what he means by it? Is he impugning Opposition Members?

The Chairman: Order. I call the Under-Secretary.

Mr. Ainsworth: I would never, ever suggest that an hon. Member was deliberately seeking to mislead a Committee of the House. I have been careful to stay on the right side of that line, and I have no intention of coming into conflict with the Chairman by putting myself on the other side of it.

There has been a lot of reporting in the press and a lot of talk in Committees, and I hope that we shall be able sensibly to examine what is necessary to protect our people from a law enforcement and a public health point of view. Everyone is worried about intrusions into privacy and about the state's overweening powers, and we must get the balance right. It would be a good thing if Parliament could have a sensible debate about the issue, and we may have started that process in this Committee.

Dr. Palmer: The hon. Member for Surrey Heath drew a parallel with the railway industry, and many would agree with his suggestion that people signed off on measures too easily in some cases. Does the Under-Secretary agree, however, that the position is the other way around at DEFRA? The problem for the Department is that there can be catastrophic consequences if it is too difficult to get surveillance. Would it not have been better if an official—it could have been a low-level official, as far as I am concerned—had authorised more careful surveillance of the farm where the recent foot and mouth epidemic started?

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