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Session 2002 - 03
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Delegated Legislation Committee Debates

Draft Regulation of Investigatory Powers (Communications Data), (Directed Surveillance and Covert Human Intelligence Sources), (Intrusive Surveillance) Order 2003

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Third Standing Committee
on Delegated Legislation

Tuesday 4 November 2003

[Mr. Nigel Beard in the Chair]

Draft Regulation of
Investigatory Powers
(Communications Data)
Order 2003

2.30 pm

The Parliamentary Under-Secretary of State for the Home Department (Caroline Flint): I beg to move,

    That the Committee has considered the draft Regulation of Investigatory Powers (Communications Data) Order 2003.

The draft order was laid before Parliament on 11 September and is made under section 25(1), (2) and (3) and section 78(5) of the Regulation of Investigatory Powers Act 2000. Communications data is information about communications; who called whom, and when. It is not about interception of communications, or about what is said in phone calls or written in e-mail or letters. That is already very tightly regulated under chapter 1 of part 1 of the Act.

The order will enable chapter 2 of part 1 of RIPA to be implemented and will bring long overdue regulation to public authorities' acquisition of communications data. Use of data such as telephone and internet subscriber information, itemised billing records and even mobile phone location data is a vital tool in the prevention and detection of crime. In some cases it can save lives. Parliament has already approved the idea that certain authorities—the police, customs, the intelligence agencies and the Inland Revenue—may, when the relevant provisions are implemented, use RIPA to acquire communications data. The draft order designates additional relevant public authorities that may use the provisions. The order restricts the purposes for which all the authorities—both those already covered and the new additions—can acquire data.

The order restricts the types of data that public authorities may acquire. Where an authority, or type of authority, has demonstrated a necessary and proportionate requirement for access to a type of data, the order provides for that. It restricts the use of the powers to designated senior authorising officers.

Public authorities' acquisition and use of communications data is not new. The activity in question already goes on, but is unregulated. The public authorities listed in the draft order already seek communications data from communication service providers, using statutory information-gathering powers and through the exercise, by providers, of exemptions to non-disclosure under the Data Protection Act 1998.

Mr. Richard Allan (Sheffield, Hallam): The Under-Secretary said that the powers are being exercised in a non-RIPA way at present; under legislation other than the Regulation of Investigatory Powers Act 2000. Will she confirm that, whereas all the public bodies listed in

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the order currently obtain access to communications data, no new bodies are to come under the terms of the order?

Caroline Flint: I can confirm that.

The aim of the order is to bring the relevant public authorities within RIPA's strict control and oversight regime. That means that all acquiring of data will have to be: for a specific purpose, one drawn directly from the European convention on human rights; necessary for one of those purposes; proportionate to what it is intended to achieve by obtaining the data; and authorised by an officer at a specific and very senior level within the public authority. The exercise of the powers will be subject to oversight by the interception of communications commissioner. Anyone who thinks that their data has been wrongly acquired will have the right to go to the investigatory powers tribunal.

Mr. Dominic Grieve (Beaconsfield): I am grateful to the Under-Secretary for making that point, but of course many people will have no idea that their data has been acquired, will they?

Caroline Flint: That may be the case, which is why there are safeguards about the ways in which access can be obtained to data in the first place. Let us not forget why many organisations want the data. They have statutory obligations to protect, in different ways, the core business of their organisations. That is why we want a clear, open framework that is contained within the Human Rights Act 1998 and in the European convention on human rights. We want it to be transparent, but also to incorporate safeguards to ensure that the relevant authorities act properly for the purposes of the order.

A further safeguard, of which the hon. Member for Beaconsfield (Mr. Grieve) may be aware, is that all public authorities listed in the order must follow the procedures that are set down in the code of practice on acquisition of communications data, explaining the statutory provisions in detail. A draft exists for public authorities to follow; a public consultation exercise on the published draft has been completed. The draft code will be laid before Parliament for approval.

There are further administrative safeguards that cannot be covered in the order; for example, the double-lock safeguard, which means that certain authorities can acquire certain types of data, such as itemised telephone records, only with the approval of the interception of communications commissioner. Another safeguard is the provision of specialist training to public authorities on how to acquire communications data to ensure that privacy is respected and that those with legitimate and necessary access to such information know the law.

Responsibility for overseeing the use of the powers contained in part 1, chapter 2 of RIPA is the responsibility of the interception of communications commissioner, Sir Swinton Thomas. The Home Secretary has made it clear that the commissioner will have the resources he needs to carry out his duties effectively and to report to Parliament and the public. The investigatory powers tribunal will be the appropriate forum for complaints about that activity.

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The draft order is welcomed by public authorities and the communications service industry, as are the regulation and clarity that it will introduce. Following the Government's consultation, the public understand that there is a need for such information to be accessed. They broadly welcome that, as long as it is done in a regulated, open and transparent way.

In conclusion, the draft order represents a significant move towards protecting individuals' privacy by strictly regulating the acquisition of communications data by public authorities.

Mr. Grieve: Before the Under-Secretary finishes her opening remarks, will she tell the Committee how the draft order will marry with the draft voluntary code of practice that relates to part 11 of the Anti-Terrorism, Crime and Security Act 2001, particularly the extent to which data that may be retained under that power may be accessed by those bodies for a different purpose from that originally intended?

Caroline Flint: That issue will be dealt with by the appropriate order, which will be laid shortly. As for disparity of purpose, we consider that data retained under the voluntary code of practice, which will be debated next week, can be accessed for purposes other than national security if that is necessary and proportionate. Part 2 of the 2001 Act contains no explicit or implicit restrictions on the purposes for which data may be retained. That was made explicitly clear under the voluntary code during the debate of the 2001 Act.

There is no other legal reason, under the Human Rights Act 1998 or otherwise, to impose such a restriction. The ECHR principle of proportionality does not impose a blanket prohibition on access to data. That principle inherently requires consideration on a case-by-case basis. Sometimes it will be proportionate, sometimes it will not; it will depend on the circumstances of the case.

Mr. Allan: I am sure that we will return to that point when we consider the other draft orders. I hope that the Under-Secretary will accept that hon. Members have received serious legal opinions that suggest that the communications industry could have difficulties with the combination of orders coming in together. Bodies could be exposed to legal liability if they voluntarily retain data for national security purposes, yet provide it under the terms of this draft order. That issue has not been resolved and needs to be considered today as we go through the code.

Caroline Flint: I thank the hon. Gentleman for raising that point. My officials and I have been working with the communications industry to try to find a way forward for the public good. Those discussions continue.

I must correct something that I said earlier about public authorities that have not accessed data before. The Gaming Board is one of those organisations, and it recently identified the importance of the use of communications data to prevent crime. I apologise for my mistake.

The draft order provides regulation and clarity and has gone through a robust consultation process. It

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represents a significant move towards protecting individual privacy, and gives us the power to cope with the sophisticated way in which members of the criminal community want to commit their crimes. The order is compatible with the rights set out in the ECHR and, for the first time, implements a proper regime whereby that conduct can take place in a way in which respect for human rights is explicit.

2.42 pm

Mr. Grieve: The Under-Secretary's extremely brief and—I do not mean this in a derogatory way—rather hasty peroration on the powers, which relate to significant and important changes, was disappointing. I accept that the background problem lies, to an extent, in the Regulation of Investigatory Powers Act 2000. As the official Opposition did not support that legislation, I do not look kindly on the way in which it is now used—inevitably, in my view—as a lever, progressively ratchetting powers to the state in a manner that was certainly not spelt out explicitly when the legislation was originally introduced.

As the Under-Secretary outlined, the order gives substantial new powers for the acquisition of communications data and adds a wide range of new authorities to the list of those who may obtain that data. As usual, articles 7(1) and 7(3) of the order state that the powers may be used not just to prevent or detect crime, which I am sure is what most people associate with the original purposes behind RIPA, but far beyond that in the nebulous areas of preventing harm to the economic well-being of the United Kingdom and of preventing disorder. At the time the Act came into being, those terms had the overtones of ''1984'' about them. One has only to look at how those powers are now applied to make that anxiety more manifest.

It is frankly extraordinary that we are here on a Tuesday, considering the orders, and once again the ability of Members of the House to consider properly the implications has largely been circumvented by the insufficient time available to make adequate reference to the input of the Joint Committee on Human Rights. It was only this morning that I could obtain its view on the matter, in a peripheral and draft form. It is disgraceful that the Government should come before the House and ask us to approve an order when we had not time to obtain the views of the Committees set up as a safeguard to ensure we do not make foolish decisions.

It is noteworthy that the Joint Committee on Human Rights has serious reservations about the order. It made the fairly obvious point that the retention and disclosure of communications data, as the Under-Secretary acknowledges, represent an interference with private life. It requires justification under the Human Rights Act 1998, which is after all the Government's Act. I may have been a lone voice at the time in suggesting to the Government that I did not think that it was such a bad idea. However, at the time I did not fully appreciate the way in which the Government would use it to constantly justify intrusive measures that, in my view, are often incompatible with human rights.

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The Committee went on to say that if interference was not justified, retention or disclosure was unlawful. It is particularly important that when the Under-Secretary puts that famous rubber stamp on the front of the order, stating that, in her view, the measure is compatible with the Human Rights Act, she is able to justify that in detail to the Committee.

I am sorry to say to the Under-Secretary that in her ten-minute rapid peroration, carried out at a gallop, all sorts of areas were not covered. To take the most obvious point, if the new bodies added to the list are compatible with the Human Rights Act on the basis of proportionality, she must go through each individually and explain why it has to be added. The mere fact that—with the exception of the Gaming Board, to which I shall return later—they may have accessed information under existing statutory powers in the past does not mean per se that they are now entitled to continue to do so.

One of the main features of section 25 of the 2000 Act is that it is tightly confined. Indeed, only the most passing reference has been made to what section 25 of the 2000 Act says, so let me spell it out explicitly. ''A relevant public authority'' in sub-paragraphs (1)(a) to (f) means a police force, the National Criminal Intelligence Service, the National Crime Squad, the commissioners of Customs and Excise, the commissioners of Inland Revenue and any of the intelligence services. In addition, a relevant public authority means—this is always the catch-all problem that we face when legislating—

    ''any such public authority not falling within paragraphs (a) to (f) as may be specified for the purposes of this subsection by an order made by the Secretary of State.''

The Government cannot escape the fact that when that legislation went through the House the impression was conveyed—with perfectly reasonable, good and honest intent, I am sure—that the RIPA powers were for the specific purposes of detection of crime and national security. That seems to be somewhat removed from the authorities that are being added to the list.

The restrictions that the Government imposed in section 25 of RIPA were an important balance that Parliament struck between the right of respect for private life and the public interest. However, the Government now tell us that in the public interest a huge amount of new bodies must be added. The justification is that since those bodies have obtained that information in the past, they should be able to obtain it in the future. Why on earth, for example, should the Gaming Board be entitled to direct access to material that the Government say it ought to be able obtain?

If I suspect that somebody is committing a crime against me, it does not give me a right to go personally and obtain access to the communications data of the person whom I suspect. What I must do—the Under-Secretary will have no difficulty acknowledging this—is go to the police and say, ''There is a problem here. I suspect that this person may be committing a crime against me, and one of the things that you might care to consider is accessing his communications data.''

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However, simply because a body or official department might need access to information for the prevention of crime, the Under-Secretary will turn it into a crime prevention agency, which is part of a ratchet effect.

A multiplicity of crime prevention agencies is being created by degree, each with investigatory powers that outsiders would never have dreamed existed or thought should have existed 10 or 15 years ago. The Government have deliberately started that trend. The Under-Secretary's justification, which I understand, is, ''Well, actually, they were doing this anyway.'' If so, now is the time to consider whether they should continue. How many law enforcement agencies do we want in this country? That is the key question that the Committee must consider.


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Prepared 4 November 2003