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

[back to previous text]

Caroline Flint: I have listened carefully to the hon. Gentleman. Does he agree that a number of organisations have been established precisely to fulfil statutory and other responsibilities, as set out in legislation? For example, the Gaming Act 1968 and the Lotteries and Amusements Act 1976 provide that those involved in organising gaming and lotteries must be fit and proper to do so and that gaming must be kept free from criminal infiltration. Is it not right that bodies with such legal responsibilities should be given the means—albeit within a regulated, open and transparent framework containing safeguards—to tackle behaviour that might be criminal? That is clearly part of their statutory responsibility.

Mr. Grieve: It may be part of their statutory responsibility to keep tabs on the way gaming is conducted, but that does not mean that they have, or that there should be, a right to access communications data. I return to the important basic principle—should they be the initiators of criminal investigations within their own spheres?

The historical position is beautifully spelled out in section 25 of RIPA. The police force, Customs and Excise and the commissioners of Inland Revenue—I leave aside the intelligence service, the National Crime Squad and National Criminal Intelligence Service, which are, I accept, peripheral bodies of the police—have initiated prosecutions. Other bodies can prosecute; the Environment Agency can do so. In my criminal practice, I prosecute mainly on behalf of the Health and Safety Executive and local authorities in health and safety matters. A private individual can bring a prosecution.

If the police choose not to prosecute the burglar who burgles my house I can, if I wish, deposit a summons at the court and prosecute him myself. Unless the Attorney-General intervenes through the Director of Public Prosecutions to take over that prosecution and discontinue it, and so long as it is conducted by an independent solicitor, I can carry out that prosecution. However, that does not entitle me to access communications data. The Government have taken the view that any governmental organisation with a regulatory responsibility should have powers that the Minister, who is a very reasonable person, will concede are fairly draconian. If they were not regarded as draconian, we should never have had RIPA in the first place. The Minister knows, as did the

Column Number: 009

Government when they introduced the Act, that the regime that came into being as a result of the Human Rights Act 1998 brought with it serious issues of regulation, in terms of intrusiveness, about obtaining confidential information. As a result, RIPA came into being.

Caroline Flint: I take the hon. Gentleman's point about how important it is to bear that in mind. I do not try to hide behind the notion that communications technology has given tools to people in many walks of life to undermine or defraud organisations and to carry out criminal activities. One of the questions that was asked as RIPA went through Parliament was how, in the 21st century, law enforcement agencies and other public authorities should tackle the sophisticated use of communications data in such activities if they did not have the powers to enable them to identify and deal with it. In some cases, they have to identify people who are abusing their own systems, leading to police intervention and criminal prosecution. That is why the consultation on access to communications data was so important.

All the organisations that have been mentioned, as well as communications service providers, non-governmental organisations and others, could put their points of view to try to reach a consensus as to how to proceed. As the hon. Gentleman pointed out, one of the issues was that some organisations were using powers that were not regulated within a single framework. We are trying to bring rigour to a difficult area and to develop a gold standard to which such organisations might aspire.

Mr. Grieve: I am grateful to the Minister for her intervention. I am not unsympathetic to the Government's difficulty. I am also prepared to acknowledge that, as we go through RIPA orders, highlighting things that were not previously highlighted, we are bringing to public attention the extent of the intrusiveness of the powers that are being developed. When all is said and done, however, it is a matter of considerable concern that we are beginning to live in a society in which surveillance of confidential information and the powers to carry it out are being distributed very widely, including of course to organisations to keep an eye on each other.

One of the most remarkable things in schedule 2 is the Office of the Police Ombudsman for Northern Ireland. Presumably, the purpose of giving that ombudsman RIPA powers to acquire all sorts of communications data is to watch over police officers who may be under investigation. This is an extraordinary overarching structure of mutual surveillance. I wonder whether in a society that values a civil society and that goes to the trouble of passing the Human Rights Act, apparently to protect people's civil rights, especially their right to privacy, we are actually developing the reverse—a society in which numerous organisations are given legitimate powers to intrude. That raises serious questions about who supervises the supervisors, which goes to the heart of the matter. If there were still only three or four law enforcement agencies with these powers, I would be more confident that we could keep an eye on what is going on. I become worried, however, once we start

Column Number: 010

having a multifarious group of organisations with these powers.

Peter Bottomley (Worthing, West): This is not the time to go into individual cases, but my hon. Friend might like to ask the Minister to comment, this afternoon or on another occasion, on cases in which people make applications that turn out not to have been warranted. Is some sort of report made to the authority that asked for them in the first place, and is there some sort of consultation with those who granted the information, so that lessons are learned? I could write to the Minister about a particular case that has worried me. Internal reviews are needed, as well as outside ones, so that we can see what the pattern has been over the year.

Mr. Grieve: My hon. Friend makes a good point. We must of course wait to see whether Sir Swinton Thomas can discharge the extremely onerous burden that is to be placed on him. Again, it is terribly difficult to estimate the number of times that these powers will be exercised by the multifarious authorities, but I suspect that Sir Swinton Thomas's department will grow and that he will have some difficulty keeping tabs on the volume of information that will flow in.

Mr. Allan: The best estimate that I have seen is about 1 million requests a year under the current regime, never mind under the new one.

Mr. Grieve: I had a rough idea of the approximate figure, but no idea of the exact one. The Minister has not yet given us a figure. She may be able to do so before the end of our proceedings. I accept that it has become a matter of routine in many areas.

Caroline Flint: We cannot be precise about the figure until the regime is implemented, but our current indication is that the number of requests for data has dropped where the authority has followed the RIPA model, which includes ensuring that the request must be proportionate in each case. For example, the figures for the period October 2002 to September 2003 show a reduction of 29 per cent.

Peter Bottomley: From what to what?

Mr. Grieve: I shall give way to the Minister if she wants to tell me.

Caroline Flint: From 38,000 to 27,000.

Mr. Grieve: These are rather large figures. I have a feeling that they may have been larger still, but we shall leave it at that.

Peter Bottomley: Just for the record and for the benefit of anyone who follows what we do, the Minister said that requests made under RIPA have dropped. She has not given us information for requests not made under RIPA under the old regime.

Mr. Grieve: I took the figure as an indication of one agency—Customs and Excise—with which I am familiar, as I used to prosecute for it. A wonderful man by the name of Mr. Godivalla was given the permanent job of liaising with Customs and Excise to produce telephone records. We produced telephone records for each case, and Mr. Godivalla would go to court, if necessary, to explain how they were obtained. I am familiar with this practice and I know how

Column Number: 011

widespread it is. However, the Minister will understand that I am inherently happier with the idea of Customs and Excise doing it to prevent drug trafficking than I am for the Gaming Board to do it in connection with the regulation of gaming houses. It further extends the state's intrusive remit.

I said that I wanted to move on, but before I do, I have a question for the Under-Secretary. The matter has been considered by the Joint Committee on Human Rights, which, I believe, has written to the Under-Secretary. She has put her imprimatur on the explanatory memorandum, saying that the order is compatible with the human rights convention. I hope that she will tell us the Joint Committee's view, because I understand that it has expressed serious anxieties and reservations about its compatibility. We, and the public, ought to know.

I turn to a point that I touched on earlier about leakage, and the draft voluntary code of practice made under part 11 of the Anti-terrorism, Crime and Security Act 2001. It is not good enough to say that because it is in draft and will not come into force until later, we will have to consider the position then. The Under-Secretary admitted that the consequence of that code of practice being in draft is that it will be possible for organisations to access data that I understand was intended to be retained solely for anti-terrorism purposes. I hope that I understood her correctly and that no Human Rights Act issues are involved. It would be astonishing if that were the Government's position.

As I understand it, the Anti-terrorism, Crime and Security Act 2001 gives powers for the retention of material that otherwise could not be legitimately retained for specific anti-terrorism purposes. However, the fact that it is retained material will enable the various agencies listed by the Government to obtain information relating to it that otherwise would be unobtainable. That must be a potential Human Rights Act difficulty. I hope that before we vote on the matter, the Under-Secretary can give the Committee chapter and verse about the advice that the Government received on that. The fact that it is a problem that will emerge later because we do not have a voluntary code of practice in operation seems irrelevant. Our decision today will have a consequential, knock-on effect of considerable importance.

The Under-Secretary spoke about the benefits of everything being under the RIPA system. However, as she has acknowledged in previous conversations with me, the extraordinary thing is that that is not what has happened. The Department for Work and Pensions has a completely separate structure. It is not under RIPA; by virtue of its own legislation, it obtains its information under separate powers. I am anxious not only about how the RIPA powers are being extended. One of the justifications given by the Under-Secretary for doing was the desirability of having an overarching structure that encapsulated everything and took account of the Human Rights Act, but we do not have that. I detect that such a state of affairs may be a

Column Number: 012

source of some embarrassment to the Home Office. If it is, she ought to say what will be done about it. Again, we are creating a multiplicity of powers and functions, and the exercise of control will be much more difficult.

Subject to what the Under-Secretary has to say, I remain wholly unconvinced as to the desirability of letting the powers be implemented without protest. It is not that I want to be gratuitously obstructive; I appreciate that the Government have a difficult task in crime prevention and regulation. However, the situation is in danger of getting dangerously out of control. There is a lack of clarity and, as I said, the timing of the decision—which clearly has been taken in some haste—troubles me. Notwithstanding the fact that the earlier attempt was withdrawn, we have come to the Committee with some of the building blocks that would enable us to make a full assessment of what is happening still missing.

I hope that the Under-Secretary will give us details of exactly what the Joint Committee on Human Rights said to the Government. A letter was sent, to which neither I nor the hon. Member for Sheffield, Hallam (Mr. Allan) nor any other hon. Member in the Committee, save for the Under-Secretary, is privy and we ought to know what the Joint Committee said. I shall listen carefully to her, but at present I intend to invite my hon. Friends to oppose the order.

3.5 pm

Previous Contents Continue

House of Commons home page Parliament home page House of Lords home page search page enquiries ordering index

©Parliamentary copyright 2003
Prepared 4 November 2003