Column Number: 1
Second Standing Committee on Delegated Legislation
The Committee consisted of the following Members:
Chairman:
Mr. Joe Benton
Carmichael, Mr. Alistair (Orkney and Shetland) (LD)
†Clifton-Brown, Mr. Geoffrey (Cotswold) (Con)
†Colman, Mr. Tony (Putney) (Lab)
Davies, Mr. Quentin (Grantham and Stamford) (Con)
†Flint, Caroline (Parliamentary Under-Secretary of State for the Home Department)
†Heppell, Mr. John (Lord Commissioner of Her Majesty’s Treasury) (Lab)
Johnson, Mr. Boris (Henley) (Con)
McCafferty, Chris (Calder Valley) (Lab)
†McIsaac, Shona (Cleethorpes) (Lab)
†McWalter, Mr. Tony (Hemel Hempstead) (Lab/Co-op)
†Mercer, Patrick (Newark) (Con)
Oaten, Mr. Mark (Winchester) (LD)
Owen, Albert (Ynys Môn) (Lab)
Prosser, Mr. Gwyn (Dover) (Lab)
†Reed, Mr. Andy (Loughborough) (Lab/Co-op)
†White, Brian (Milton Keynes, North-East) (Lab)
Geoffrey Farrar, Committee Clerk
† attended the Committee
Column Number: 3
Monday 21 March 2005
[Mr. Joe Benton in the Chair]
Draft Regulation of Investigatory Powers (Communications Data) (Amendment)
Order 2005
4.30 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) (Amendment) Order 2005.
The Chairman: With this it will be convenient to consider the draft Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) (Amendment) Order 2005.
Caroline Flint: The order, which was laid before Parliament on 16 December 2004 and debated in another place on 4 February 2005, is made under the Regulation of Investigatory Powers Act 2000. The aim is to bring a small number of public authorities within the Act’s strict control and oversight regime. That will mean that their requirements for acquiring communications data, conducting directed surveillance and using covert human intelligence sources or informants will have to be for specific purposes, drawn directly from the European convention on human rights; necessary for one of those purposes; proportionate to what is sought to be achieved; and authorised by an officer at a specific and senior level within the public authority.
The order will enable some powers previously debated by Parliament to be used, and will remove powers from those public authorities with no need for them. The communications data order is made under sections 25(1), (2) and (3) and 78(5) of the Act. We know that communications data such as telephone and internet subscriber information, itemised billing records and even mobile phone location data are vital in the prevention and detection of crime. However, I stress that communications data do not include the content of any communication—that is tightly regulated by part 1, chapter 1 of the Act.
The order gives public authorities powers to acquire communications data under part 2 of chapter 1 of the Act, consistent with powers and functions that they already have. That includes new authorities: the Independent Police Complaints Commission; Ofcom—although Parliament considered and approved the former Radiocommunications Agency’s requirement for detecting pirate broadcasters, which is now a function of Ofcom, so the order is changing the defined organisation for which the powers can be used—and the civil nuclear constabulary which, from April, will replace the United Kingdom Atomic
Column Number: 4
Energy Authority constabulary; as well as long-established authorities with functions of a public nature: the ports police at Dover and Liverpool.
The order also provides that a senior civilian officer or seconded police officer within the Scottish Drug Enforcement Agency may authorise the acquisition of communications data. That brings the SDEA in line with the multi-agency arrangements in the National Criminal Intelligence Service and the National Crime Squad. Those organisations deal at level 3 with serious organised crime, particularly drug crime.
Accreditation of officials who use the powers ensures that they understand the legal and technical issues involved and provides the communications industry with a mechanism with which to authenticate individuals placing disclosure requirements upon their businesses.
The exercise of the powers is subject to oversight by the interception of communications commissioner, Sir Swinton Thomas, who is obliged to keep under review, and report to Parliament on, the exercise of powers and performance of duties relating to acquisition of communications data. Anybody who thinks that his or her data have been wrongly acquired has the right to make a complaint to the Investigatory Powers Tribunal. If the commissioner were to establish that an individual had been adversely affected by the wilful or reckless failure by any person exercising or complying with the powers and duties under the Act in relation to the acquisition or disclosure of communications data, he would inform the affected individual of the existence of the tribunal and its role, and disclose sufficient information to the affected individual to enable him or her effectively to engage the tribunal.
All public authorities must follow the procedures set down in the draft code of practice on acquisition and disclosure of communications data, which explains the provisions in detail. It has been extensively revised and will shortly be subject to further public consultation. The draft revision is available on the Home Office website for those who are interested.
The draft Regulation of Investigatory Powers (Directive Surveillance and Covert Human Intelligence Sources) (Amendment) Order 2005 is made in exercise of the powers conferred by section 30(1), (3), (5) and (6) and section 78(5) of the Act. Part II of the Act provides a statutory framework regulating the conduct of covert surveillance and the use of covert human intelligence sources by public authorities.
Directed surveillance does not include covert surveillance of anything taking place on any residential premises or in any private vehicle. That would constitute intrusive surveillance. The order does not confer any power on any authority to conduct intrusive surveillance. It provides the power to new public authorities and long-established authorities with public functions to conduct directed surveillance and use covert human intelligence sources within a statutory framework consistent with the powers and functions that they already have. Again, that includes Ofcom, the new civil nuclear constabulary and the ports police at Dover and Liverpool.
Column Number: 5
Equally, the order removes powers from public authorities and officials that no longer require them—health authorities and officials of the transport security directorate of the Department for Transport. The exercise of those powers is subject to independent oversight by the chief surveillance commissioner, Sir Andrew Leggatt. Like the interception commissioner, he is obliged to keep under review—and report to Parliament on—the exercise and performance of powers and duties relating to the conduct of surveillance and the use of covert human intelligence sources. Again, anyone who thinks that they have been wrongly subject to surveillance or who thinks that their human rights have been infringed has the right to make a complaint to the Investigatory Powers Tribunal.
Codes of practice on covert surveillance and covert human intelligence sources, which were approved by Parliament under the affirmative resolution procedure, set out the procedures to be followed under the Act to conduct directed surveillance or use covert human intelligence sources.
Brian White (Milton Keynes, North-East) (Lab): One of the things that has worked well under RIPA has been the single point of contact. Will the Minister ensure that the new authorities are aware that the principle of having a single point of contact is the key to establishing confidence in RIPA?
Caroline Flint: Yes, I can assure my hon. Friend; we will certainly ensure that that is the case.
In conclusion, the orders represent a continuing process of ensuring that public authorities carry out their lawful functions and activities in a regulated manner that protects individuals’ rights and respects their privacy. In my view, the orders are compatible with the rights set out in the European convention on human rights; they ensure that the acquisition of communications data, the conduct of directed surveillance and the use of covert human intelligence sources can take place in a way in which respect for human rights is made explicit. As promised when the legislation was discussed, we are removing from those organisations for which it is not necessary the power to carry out those duties. If it is not necessary, there is no need for those duties to apply; if it is necessary, they can apply.
4.37 pm
Patrick Mercer (Newark) (Con): I am grateful, Mr. Benton, that you are chairing our Committee. I am pleased to see so many of my colleagues here today. [Laughter.]
Shona McIsaac (Cleethorpes) (Lab): It is a vast increase.
Patrick Mercer: It is a 100 per cent. increase on last time.
I am grateful to the Minister for her clear exposition of the statutory instruments. The Opposition broadly support what the Government are introducing, but I have one or two questions.
Column Number: 6
There cannot be a more difficult or important Act to get right than RIPA. If we get it wrong, we clearly put back not just our fight against crime but—I speak with a vested interest—our fight against terrorism. Although we would take a slightly different approach—if you indulge me, Mr. Benton, I might cover that later—I none the less see the importance of the tidying-up process that we are engaged in today.
I am slightly concerned that the list of extra agencies all contain constabularies of one stripe or another, except for the Office of Communications. I have no great difficulty with the fact that uniformed policemen and policewomen should be in a position to enforce or even to take advantage of the legislation, but I am interested in how civil servants fit into the jigsaw and how we can be certain that information remains covert, privy and secure in the hands of civil servants, especially as police officers are bound by a completely different system of discipline.
While I am on the subject, I am interested to note that the level of authorisation required of Ofcom is higher in the directed surveillance and covert human intelligence sources order than in the communications data amendment order. Why is that? I am sure that there is a good explanation, but it is not immediately clear why one order specifies a
“Manager of Spectrum Operations or Head of Enforcement and Interference policy”
and the other specifies a “Senior Enforcement Policy Manager”. If the Minister could clear that one up, I would be grateful.
I am particularly keen, in considering some of the agencies, to know how the officers and constables of the Dover Harbour Board and the Mersey Docks and Harbour Company are overseen and trained. What training—what authorisation, oversight and discipline—applies to the special constables of the Dover Harbour Board and the constables of the Mersey Docks and Harbour Company? Can the Minister assure me that they are trained to the highest levels—the same as their regular counterparts?
I am particularly worried about the special constables. Not for a moment would I cast any aspersions on the abilities of special constables, but both their work and their training are part-time, and, in the light of the style of covert intelligence that is to be available to them—particularly the use of human sources—it strikes me that further explanation is required.
As an illustration of what I mean, although I appreciate that it is not quite the same issue, when I was working with the Royal Ulster Constabulary, one of the rules on source handling was that a source could be handled only by a regular RUC officer. The reservists—that was the special term used in the RUC of old—could not handle a source. That was for the very good reason that the reservists did not and could not have the necessary level of special training.
In more general terms, I shall quote the noble Earl of Erroll in the debate on 4 February when he said:
“I have heard that many other bodies, not all government statutory bodies, are banging on the door hoping to get rights as well, to try to look out for other things such as rigging the results of competitions. What worries me about RIPA in the whole is the
Column Number: 7
self-authorisation aspect. Perhaps one should have some mechanism whereby such bodies could get the data, but are not authorised for self-authorisation under RIPA and have to go via the police or some other suitable body.”—[Official Report, House of Lords, 4 February 2005; Vol. 669, c. 512.]
If the Minister could expand on the answer given by the noble Lord Bassam of Brighton, I would be grateful.
We can see in the orders that we are considering a change in the nature of a series of different Government enforcement agencies. I quite understand that the Scottish Drug Enforcement Agency has now taken over from the Scottish crime squad and that, similarly, the United Kingdom Atomic Energy Authority constabulary is now to be called the civil nuclear constabulary.
All of that makes hugely good sense to me, and the procedure that we are going through to make those changes is straightforward. However, there is a proliferation of those authorities—any number of them. I wonder how that matches up to the requests, requirements or demands of the new Commissioner of Police of the Metropolis, who talks clearly about the need for a border authority or a border police force.
Does the Minister think that that opens the door for the substitution of one particular body, which might oversee all the relevant powers, and control all our various ports, airports and sea and land barriers? I know that the Minister expects me to say—I shall not disappoint her—that I am sure she agrees that if there were a single Minister and a Department for homeland security, all those various different constabularies and authorities could be brought together and dealt with in one place. Power and information could be centralised. That would make it much less likely that intelligence would be compromised and the entire organisation would be much less porous. I understand that all such authorities are empowered to share data and intelligence with a number of other countries. How likely is it that there will be some form of security, so that there will not be endless breaches as the powers are extended?
I would be grateful if the Minister could provide some answers to those questions. I see the direction in which the Government are going and I do not seek to create great difficulties. As I said, I believe that we could perform the task more capably and efficiently, but I should be interested to hear the Minister’s reply.
4.45 pm
Caroline Flint: The hon. Member for Newark (Patrick Mercer) asked several questions. Parliament has approved many of the functions of a variety of public authorities that investigate specific crimes. It is not only the police who investigate crimes. For example, the Independent Police Complaints Commission is not a police body, but a public authority that investigates corrupt police officers. Ofcom was thoroughly debated by Parliament, when it was the Department of Trade and Industry’s Radio
Column Number: 8
Communications Agency, particularly in relation to concerns about pirate radio stations and its ability to tackle the problem.
The hon. Gentleman asked why Ofcom has identified a more senior designated person—the head of big operations—for the acquisition of communications traffic data. The answer is partly because Ofcom recognises the sensitivities around the acquisition of communications traffic data and has requested a named person, as an additional safeguard. As the hon. Gentleman pointed out, it is proposed that the managers of spectrum operations, who are the heads of Ofcom’s regional offices, would continue with their role in authorised surveillance. Ofcom recognises that the acquisition of communications data is sensitive and wishes to ensure openness and transparency for everyone concerned.
The hon. Gentleman also asked about the Dover and Liverpool ports police. Ports police officers are full-time constables, sworn in by magistrates, and most if not all have served as police officers. The orders apply to the Dover police and port of Liverpool police, because they are the only ports police who have specific investigation branches that are headed by experienced detective superintendents and staffed by officers who undertake their training alongside officers from Home Office police forces.
Patrick Mercer: I am sure that this is merely a gap in my understanding, but does special constable in the context of the Dover Harbour Board mean a special constable as we would normally understand the term or something that applies only to the Dover Harbour Board?
Caroline Flint: I shall check that, to reassure the hon. Gentleman. The reality is that those taking part in authorising the activities would have to have received training that had been identified and provided. The association of port police chief officers is the equivalent of the Association of Chief Police Officers. As I said, ports police undergo the same training as those in other police forces. In many cases, personnel at the ports work with the police on large-scale operations.
Special constable is a legal term. It does not refer to the special constables who give up their time in our communities, but to a full-time post. I hope that that reassures the hon. Gentleman that we are not talking about what we usually understand by the term special constable.
Patrick Mercer: I most grateful to the Minister and hope that she will forgive that gap in my understanding.
Caroline Flint: I do forgive the hon. Gentleman. It is important that we clarify such issues in Committee.
He also referred to the wider issue of a single border agency to tackle problems at the borders, instead of the police, immigration officials or customs officers doing similar work. We remain to be convinced that a change of such magnitude is appropriate and are concerned that such a change will have a negative impact on delivery. We are keen to look, and to identify more
Column Number: 9
efficient ways to ensure that there is no duplication of effort and that information and intelligence are shared. That is important as it will allow continuity while ensuring that we improve communication and dialogue between agencies. We are in the process of creating the Serious Organised Crime Agency, a major step change in tackling serious organised crime. However, for a number of reasons, we do not believe that this is the time or that it is necessary to venture into a major change of border controls.
The hon. Gentleman tried to tempt me to talk about creating a new Government Department. I thought that his party wanted to reduce the number of Departments, so that is an interesting proposition. However, uppermost in everybody’s mind—in Home Office work and in working with other agencies—is the safety and security of British citizens.
The powers are important, but we have to reassure the public that there is a framework in which they can feel that they, as ordinary citizens, will not be subject to unnecessary, inappropriate investigation or scrutiny of their personal lives. That is why RIPA, for all its complexity, provides a framework within which we can ensure that directed surveillance, the use of covert human intelligence sources or the retention, use and identification of communications traffic data are carried out in such a way that people feel that they can operate and use that framework. We are also working closely with the police and others to ensure, via the agencies that want to use the powers, that they will have a good understanding of when to invoke the RIPA safeguards and when not to do so—we do not want unnecessary bureaucracy.
4.52 pm
Mr. Geoffrey Clifton-Brown (Cotswold) (Con): I have listened carefully and have a few points for the Minister, if she would be kind enough to consider them. First, will she tell the Committee—
Caroline Flint: I had just finished, hadn’t I?
The Chairman: Order. The hon. Member for Cotswold (Mr. Clifton-Brown) is in order, but it would have been helpful if he had indicated earlier, before the Minister replied to the debate, that he wished to speak.
Mr. Clifton-Brown: I apologise, Mr. Benton. I wanted to listen to the debate on this rather complicated subject to see whether the points that I was going to raise would be raised by my hon. Friend the Member for Newark, although perhaps we should have had better choreography between us.
I would be grateful if the Minister answered some important, albeit somewhat complicated, questions. If she cannot answer them this afternoon, I would be grateful if she wrote to me and to other members of the Committee.
First, what safeguards will there be to prevent information on individuals being obtained incorrectly through the orders? Will they be told? How will they be able to find out?
Column Number: 10
Secondly, what resources will be involved in the orders and how many extra staff will be employed by the various agencies? Given that the Information Commissioner has a relatively small staff, I wonder what resources will be available to ensure that the statutory instruments work properly.
Will the Minister tell us something about the important issue of the use of minors under the age of 16 to gather information? It was raised by Baroness Seccombe in the House of Lords on 18 July 2002, at Hansard column 1477. The code says that under-16s may be used, but that
“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”.
To me, that does not imply that under-16s cannot be used to obtain some communications information. I should be grateful if the Minister said something about that.
I understand that under the code there will be no privileged information for lawyers or journalists and no privilege in relation to medical information. Will the Minister comment on that?
As I understand them, the statutory instruments do not cover intrusive surveillance—looking at what is happening in people’s homes. However, I understand that quite a lot of surveillance is conducted to investigate whether children are being looked after illegally, or to record the number of children going in and out of a premises. Do the statutory instruments cover that sort of surveillance? The Minister will be aware of the case raised by my hon. Friend the Member for Ribble Valley (Mr. Evans) in Prime Minister’s questions last week of a child minder who murdered a child placed in her care. Had certain information been known, that might well not have happened. What sort of surveillance is applied to child minders?
The Minister has said that the framework is ECHR compliant, but there seems to be doubt about that—certainly, some eminent lawyers have doubts. On what basis does the hon. Lady say that it is ECHR compliant?
In a debate in the House of Lords on 13 November 2003, at column 1534, the important issue of transfer overseas of communications data was raised. Perhaps the Minister could tell us whether the statutory instruments cover that matter. Will she also comment on another important issue, which was raised in the same debate by Baroness Blatch? The noble Lady said:
“I understand that under the EU Mutual Legal Assistance Convention, retained data will be shared across member states. That was decided originally on the grounds of international co-operation, since when there has been an EU/US international co-operation agreement, which allows for the sharing of communications data across the Atlantic. The recent Council of Europe Convention on Cybercrime also allows for mutual law enforcement assistance between nations. So far, 37 countries”—
not only EU countries—
“have signed the treaty, including ex-communist countries. Countries such as Armenia, Greece, Lithuania, Turkey, Estonia and Croatia have signed it. So, a Greek police officer could gain access to my communications data for whatever purpose he or she thinks fit.”—[Official Report, House of Lords, 13 November 2003; Vol. 654 , c. 1539.]
Column Number: 11
What safeguards are there in relation to the obtaining by other countries of the communications data obtained under the statutory instrument?
Will the Minister say something about how long the communications data gained under the statutory instruments will be retained? In the same House of Lords debate, Lord Lester of Herne Hill raised the important legal question whether communications providers are not public authorities for the purposes of the measure and are not bound by section 6 of the Human Rights Act 1998. In that context, are local authorities bound by that section? The kernel of Lord Lester’s legal argument was that according to paragraphs 7 and 8
“of the Draft Code . . . the Secretary of State considers it to be necessary for the purpose of national security for service providers to retain communications data for the periods set out in Appendix A to the Draft Code “.—[Official Report, House of Lords, 13 November 2003; Vol. 654 , c. 1549.]
Will the Minister say something about retention and whether local authorities are among the agencies?
Will the Minister say something about the number of intercepts? [Interruption.] Government Members may well laugh, but this is important. The citizens of the United Kingdom may well want to know how many intercepts there will be each year. Lord Phillips of Sudbury asked:
“Fair enough, but how big is the sample? And what about the majority—I suggest the vast majority—of matters which are not investigated at all? This is the only protection for the citizen against this massive extension of state surveillance. And it is a massive extension. We are not talking about 10,000, 20,000 or 50,000 because estimates from the industry are between 1 million and 1.5 million authorisations a year.”—[Official Report, House of Lords, 13 November 2003; Vol. 654, c.1554.]
We need to hear something from the Minister about how many investigations under these statutory instruments are envisaged each year. It seems to me that our citizens will be far greater surveillance than most of them would ever begin to dream of—
| 
