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Standing Committee Debates

Draft Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) (Amendment) Order 2006



The Committee consisted of the following Members:

Chairman: Mr. Bill Olner
Allen, Mr. Graham (Nottingham, North) (Lab)
Burden, Richard (Birmingham, Northfield) (Lab)
Campbell, Mr. Alan (Lord Commissioner of Her Majesty's Treasury)
Carswell, Mr. Douglas (Harwich) (Con)
Cox, Mr. Geoffrey (Torridge and West Devon) (Con)
Fabricant, Michael (Lichfield) (Con)
Featherstone, Lynne (Hornsey and Wood Green) (LD)
Hunter, Mark (Cheadle) (LD)
Jones, Mr. Kevan (North Durham) (Lab)
McCarthy-Fry, Sarah (Portsmouth, North) (Lab)
McNulty, Mr. Tony (Minister for Policing, Security and Community Safety)
Mahmood, Mr. Khalid (Birmingham, Perry Barr) (Lab)
Mercer, Patrick (Newark) (Con)
Moran, Margaret (Luton, South) (Lab)
Shepherd, Mr. Richard (Aldridge-Brownhills) (Con)
Smith, Mr. Andrew (Oxford, East) (Lab)
Taylor, Ms Dari (Stockton, South) (Lab)
Mark Etherton, Committee Clerk
† attended the Committee

Fifth Standing Committee on Delegated Legislation

Thursday 29 June 2006

[Mr. Bill Olner in the Chair]

Draft Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) (Amendment) Order 2006

2.30 pm
The Minister for Policing, Security and Community Safety (Mr. Tony McNulty): I beg to move,
That the Committee has considered the Draft Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) (Amendment) Order 2006.
The Chairman: With this is it will be convenient to consider the draft Regulation of Investigatory Powers (Communications Data) (Additional Functions and Amendment) Order 2006.
Mr. McNulty: I hope, although perhaps it is inappropriate to say this right at the start, that it will have taken longer to read the titles than it will to deliberate on the orders, made under the Regulation of Investigatory Powers Act 200, which were laid before Parliament on 5 June. Both were originally laid before Parliament on 22 May, but they were withdrawn due to an ultra vires entry relating to the Prison Service. The offending entry extended the power to access communications data and conduct directed surveillance to both directly managed and contracted prisons. In the case of contracted prisons, that would be to an employee of a private company rather than a Home Office employee and is therefore ultra vires. I pay huge tribute to the Joint Committee on Statutory Instruments official who spotted that the extension to contracted prisons was an ultra vires entry. This legal point should have been spotted before the orders were submitted to Parliament, and I apologise for the oversight.
The access to communications data order is made under section 25(1), (2) and (3) and section 78(5) of the 2000 Act. Its aim is to bring these public authorities within the Act’s strict control and oversight regime. This means that all requirements for acquisition of data, directed surveillance and covert human intelligence sources will have to be for a specific purpose drawn directly from the European convention on human rights, necessary for one of those purposes, proportionate to what is sought to be achieved by obtaining the data, and authorised by an officer of specific and senior level within the public authority.
The order provides powers for new public authorities, consistent with powers and functions that they already have in the case of authorities such as the Gambling Commission and the Prison Service or will have in the case of the new authorities such as the Gangmasters Licensing Authority. It also ensures that long-established authorities with functions of a public nature—the Royal Mail, for example—can undertake their functions in a way that is consistent with the regulatory framework.
The order specifies two new purposes, as the current scope of purposes available under the RIPA does not adequately reflect current requirement. The purposes have been extended to assist public authorities whose primary function is to investigate alleged miscarriages of justice, namely the Criminal Cases Review Commission and its Scottish equivalent. The order also specifies a new purpose, to assist the police to identify a deceased person, to investigate the reason for that person’s death and trace any next of kin or similar responsible person where no crime is suspected.
Communications data such as telephone and internet subscriber information, itemised billing records and even mobile phone location data are all vital tools in the prevention and detection of crime, and in some cases they save lives. Such communications data do not include the content of any communication. It is the traffic and the number of calls, and who is calling whom, rather than the substance. That is already very tightly regulated by part I, chapter I of the 2000 Act.
The exercise of these powers will be subject to oversight by the interception of communications commissioner, Sir Paul Kennedy. He is obliged to keep under review the exercise and performance of powers and duties relating to acquisition of communications data under chapter II of part I of the Act. Anyone who thinks their data have been wrongly acquired will have the right to go to the Investigatory Powers Tribunal. All the public authorities listed in the order must follow the procedures that are set down in the draft code of practice on acquisition and disclosure of communications data explaining the application of the statutory provisions in detail. This has been extensively revised and is currently subject to public consultation.
Accreditation of trained officials and authorising officers will ensure that those with legitimate and necessary access to such information know the legal and technical issues involved, and the Government believe that there are now sanctions in place to deal with the abuse of chapter II powers. Equally, as a society we are increasingly aware of the value that data about us have and what they can reveal about our lives. That is true of all personal data, not just communications data.
The directed surveillance and covert human intelligence sources order is made in exercise of the powers conferred by section 30(1), (3), (5) and (6) and section 78(5) of the 2000 Act. Part II of the Act provides a statutory framework regulating the conduct of covert surveillance and use of covert human intelligence sources by public authorities consistent with the Human Rights Act 1998. Within part II, the duties and responsibilities placed on each party involved in the process are explained and a system of safeguards reflecting the requirements of article 8 of the European convention on human rights is included.
Each of the entries being inserted into part I of the schedule to the 2003 order prescribe the persons entitled to grant authorisations under sections 28 and 29 of the RIPA. Those grounds are described by letters referring to the paragraphs in sections 28(3) and 29(3) of that Act. Codes of practice on covert surveillance and covert human intelligence sources, which have been approved by Parliament by affirmative resolution, set out the procedures to be followed in the granting, renewal and cancellation of authorisations under the RIPA to conduct directed surveillance or use a covert human intelligence source.
The chief surveillance commissioner provides independent oversight of the exercise of powers and duties under part II of the Act by virtue of section 62. The Investigatory Powers Tribunal established by section 65 of the Act is the appropriate forum to which to address all complaints. Both commissioners will report to Parliament and to the Secretary of State about any public authority that fails to satisfy their scrutiny. The ultimate sanction for any public authority is that Parliament approves an order excluding or removing that authority from the Act.
The draft orders represent a significant move to ensure that public authorities carry out their activities in a strictly regulated manner protecting an individual’s right to privacy. The orders are compatible with the rights set out in the European convention on human rights, and implement a proper regime whereby this conduct can take place in a way in which respect for human rights is explicit. With commissioners’ and parliamentary scrutiny there is more than sufficient accountability in terms of the regulatory framework, and I commend the orders to the House.
2.39 pm
Patrick Mercer (Newark) (Con): It is a pleasure to serve under your chairmanship, Mr. Olner, and opposite the Minister, which is becoming a bit of a habit. I thank my colleagues from Nottinghamshire for being here, however briefly.
These are not contentious measures. Both orders have been considered thoroughly in another place and have not seemed to cause any difficulties. In the approach to the first anniversary of the bombings on 7 July, the use of covert human intelligence sources intercept as evidence and the other dark powers and skills that our intelligence agencies have to use will no doubt be considered in great detail over the next few days and weeks.
I find the English in article 4 difficult to understand in the description of the communications data.
Mr. McNulty: I think that the hon. Gentleman will find that it is not English.
Patrick Mercer: I do not know whether it is English or not, but it looks like a completely foreign language to me:
“Article 4 of this Order amends article 6 of the Regulation of Investigatory Powers”
and so on order,
“to redefine the restriction on the granting of authorisations or the giving of notices under section 23 of RIPA to take into account the effect of the additional purposes in Article 2 of this Order.”
What? Will the Minister please explain?
On article 7, I take 100 per cent. the point about the Gangmasters Licensing Authority, which makes great good sense to me. Will the Minister expand a little on how this affects the Gambling Commission? He has already mentioned it, but perhaps he could give a quick sentence of explanation about how the statutory instruments might affect the Royal Mail group.
I was extremely glad to hear about the individual’s right to privacy being protected, and similarly the upholding of human rights. Those are terribly important considerations, and I have no doubt that when we move beyond the rather restricted discussions that we have had today over the next few days and weeks, the whole area will be gone through with a fine-toothed comb, certainly by us and I am sure by the media.
2.41 pm
Lynne Featherstone (Hornsey and Wood Green) (LD): It is a pleasure to serve under your chairmanship for the first time, Mr. Olner, and with hon. Members on both Benches with whom I am becoming extremely familiar—if you know what I mean. Many of the questions that I might have raised with the Minister have been thoroughly covered in the debate in the other place, so I have only a few points on which I want him to give me further clarification and explanation.
I find the language and the constant reference to other Acts complex, and I do not come from a legal background, which is unfortunate when trying to follow these things through. Perhaps the Minister could give examples to illustrate the need for additional powers for particular agencies, because I did not fully comprehend the sort of thing that the Commission for Healthcare Audit and Inspection would need to do with the powers. An example would be very helpful to me.
I also notice that, in relation to the Department for Environment, Food and Rural Affairs, there is a reference to the plant health and seeds inspectorate having powers under the RIPA removed, so clearly these are powers that come and go as to whether they are actually used and needed. With all that coming and going of powers, I wondered whether there was a default position where if those powers were not used for a certain length of time they would lapse, or do they always have to come back to Parliament, and under what circumstances; and who reviews the usage and at what point?
I also wondered about the reassurances about how this would be monitored and people’s right to go to the Investigatory Powers Tribunal and to the interception of communications commissioner. Are people automatically notified when these powers have been used on them, or do they stumble across the fact? Is there an automatic notification when these powers have been employed? This is not a contentious issue, but I would welcome the Minister’s explanation on those few small points.
2.44 pm
 
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