Mr.
McNulty: Let me try to deal with each of those points in
turn. They are all entirely fair. As a matter of general principle,
there should be a regulatory trail, so rather than simply affording
public authorities the right to these powers, and removing them only if
they do not use them, it is appropriate for authorities constantly to
go on and off, with an explanation, when they were on, of why and how
they used the powers, and a further explanation, as in the DEFRA
example, of why they no longer need them. Such an evidential audit
trail is important and central to the RIPA, so I hope that will be seen
as appropriate.
Margaret
Moran (Luton, South) (Lab): I do not wish to prolong
proceedings, but as one of the sad people, perhaps, who served on the
original Bill, I remember that one issue of debate there, which relates
to the Ministers comments about removal, was the need for
training of staff in the various agencies in accordance with agreed
procedures, including how they might prove who they were to prevent
spoofing. That is as important as some of the other measures discussed
today. Have any agencies been removed because of a failure to train in
that way and safeguard against spoofing?
Mr.
McNulty: The short answer is that I do not think that any
agencies have been removed specifically for that reason. If that is an
error, I shall certainly let my hon. Friend know. As I said in my
opening remarks, there has to be accreditation of trained officials and
authorising officers to ensure that they carry out these powers
legitimately. She makes an entirely fair point.
I do notbecause I am
fed up of doing itapologise for the language. It is legalese,
and that is the end of it. It has a rough affinity with English, but it
is presented as it is presented for the reasons that draftsmen
suggest.
Mr.
Richard Shepherd (Aldridge-Brownhills) (Con)
rose
Mr.
McNulty: Does the hon. Gentleman want to
intervene?
Mr.
Shepherd: I want to say a few
words.
The
Chairman: Order. If the hon. Gentleman wants to intervene,
he intervenes. The Minister is winding up.
Mr.
Shepherd: Oh, is this a wind-up? Then I do want to
intervene.
The
Chairman: As long as it is a short
intervention.
Mr.
Shepherd: I thought that it might be easier if I wound it
up
altogether.
The
Chairman: No, that is usually the Ministers job.
Mr.
Shepherd: I entirely understand that, but I thought that
this was a more informal process, and that it was not the
end. Anyway, the
provision relates to the Regulation of Investigatory Powers Act 2000,
which was controversial at the time, as it was considered possibly
oppressive and so on. In part 1 of the schedule to the draft order,
paragraph 4 inserts an additional prescribed office relating to the
Driving Standards Agency in the entry for the Department for Transport
in part 1 of the schedule to the 2003 order. What is that about? Why
does the Driving Standards Agency require and have access to these
extraordinary powers?
Mr.
McNulty: As with many of the other bodies to which I shall
refer when we deal with them in substance, where there is criminality,
there is a requirement and desire for these powers. In terms of the
Driving Standards Agency, as I understand it, there remains
impersonation, threat and criminal activity, with people taking driving
tests on behalf of other people, thereby fraudulently obtaining
licences. That, among other reasons, is why the DSA is
included. To return
to the point made by the hon. Member for Hornsey and Wood Green (Lynne
Featherstone), if it turns out that these powers are not required to
pursue the criminality in a public authority such as the DSA, they will
be considered and they may be removed. However, that is the initial
reason for their introduction. The DSA needs to investigate and
challenge that criminality, and the powers will
help.
Mr.
Shepherd: But that, in a sense, is my point. The provision
represents a considerable expansion of the Acts original
intention, moving into what is essentially the ordinary concourse of
our livesthe Driving Standards Agency, no less. Why does it
need such extraordinary powers as those contained in the Act and
introduced in this
order?
Mr.
McNulty: The criminality mightI am sure it is
notbe within the ordinary concourse of the hon.
Gentlemans life, but it is not within that of normal
peoples. Where there is illicit behaviour, if these powers help
to reduce and, we hope, eradicate that criminality, it must be a good
thing. That is the case in the other examples cited by hon. Members in
respect of the Healthcare Commission, the Royal Mail and the Gambling
Commission, to which I will return in a moment. That is the starting
point in respect of the DSA and
others Mr.
Geoffrey Cox (Torridge and West Devon) (Con): If there is
serious criminality in connection with driving standards, it will
almost certainly be investigated by the police. A large-scale
conspiracy to fabricate qualifications or to act corruptly would be
dealt with by the police, not by the chief executive of the Driving
Standards Agency. I see the Minister looking anxious, but this is a
serious issue. What sort of investigations would the chief executive of
the Driving Standards Agency be carrying out that would warrant
extending these powers to him, and
why?
Mr.
McNulty: In common with many other public authorities, the
DSA has its own fraud and integrity teams. As a lawyer, the hon. and
learned Gentleman knows the value of words; the strongest word he used
just now was if. He is entirely right. If there were
some mass conspiracy involving hundreds of people who were all party to
the fraudulent use of driving tests to secure driving licences, it
might, in that one instance, be appropriate for the police to
investigate, but on a regular daily basis, the staff and others who
would use the service will at least have the potential to investigate
fraud and challenge the integrity of a driving licence, which is an
important gateway document that can be used for many other things. That
is why these proposals are included. They also affect a range of other
public authorities. I take the hon. and learned Gentlemans
point, but it is a very large if in terms of one
specific conspiracy. I
will return later to the other public authorities but I want first to
refer to the other points made, in an articulate rather than a legalese
way. First, in respect of non-criminal matters, crime was excluded from
article 2(a) because, I am assured, it is already covered in section
22(2)(a). That does not sound right to me, so perhaps I can be
corrected while I am on my feet and waxing lyrical.
I was asked about some
gobbledegook in relation to articles 4 and 6 and all the other little
bits. As I understand it, the order simply amends the original Act,
where appropriate, to include new elements such as the points about
miscarriage of justice and identifying the dead. That is an overly
complex way of referring the amendments back to the original
RIPA.
Patrick
Mercer: It was article 2(b). To avoid confusion, I ask the
Minister whether we are talking about the same
thing.
Mr.
McNulty: Well, I hope we are. As I tried to indicate
earlier, I was pretty sure we were not talking about 22(2)(a), which
was not the appropriate reference. There is a serious point to be made
about the identification of the dead. There was a good deal of
trouble and inappropriate delay in identifying those who had perished in
the tsunami. That, among other things, is what prompted us to add the
new power to be used in the process of identifying those who have sadly
died. We hope that the communication data will help in tracking people
who have died. The difficulty in identification was the last thing that
the families of those caught up in the tragedy needed, and we think
that these powers will help.
Patrick
Mercer: The Minister makes a very good point. He
highlighted one of the major problems that is likely to be encountered
in the next mass killing that we are likely shortly have to endure in
this country.
Mr.
McNulty: Sadly, that may well be the case. The proposal is
not specifically for a tsunami or a similar natural disaster, but as
the hon. Gentleman suggests, it is an appropriate way of assisting in
the identification of people whose identity is not readily
apparent. Hon.
Members referred to the relevant organisations. The Healthcare
Commission is, among other things, charged with looking at the
identification and prevention of illegal and high-risk activity, such
as unregistered health care services. It is about taking enforcement
action that is not possible by other means and pursuing criminal
activities. I
am mindful that I have not yet dealt with the point made by the hon.
Member for Newark (Patrick Mercer) about the Gambling Commission. The
commission was established in 2005. It has enforcement and prosecution
powers, and in exercising its functions it must pursue and have regard
to the objectives of the Gambling Act 2005, which
are preventing gambling
from being a source of crime or disorder...ensuring that gambling
is conducted in a fair and open way, and...protecting children and
other vulnerable
people. To pursue the
first two objectives, the commission has a head of intelligence. We
think that it will require these powers to fulfil its duties in respect
of monitoring and enforcement exercises. I shall not go back to the
hon. Gentlemans point about specific crimes. We are talking in
the broader sense about the intelligence, enforcement, monitoring and
other functions within the public authorities that are relevant before
we reach the stage of a crime being committed, when of course the
powers that be will
intervene. The hon.
Member for Hornsey and Wood Green made a point about review of the use
of powers undertaken. They are undertaken by the relevant commissioner:
on one hand by the chief surveillance commissioner, and on the other
hand by the interception of communications
commissioner. I take
seriously all the points that were made, including the tsunami point,
the points about articles 2(a), 2(b), 4 and 6, and the points about the
specifics of each public authority. All the questions were
fair.
Mr.
McNulty: I will give way in a moment. The hon. Gentleman
should not stress himself. I will get to him.
All the public
authorities exist and are able to have these powers for entirely
appropriate reasons, so I
commend the orders to the Committee, but before I finish, I give way
toI shall call him my hon. Friend, if that does not damn him
too
much.
Mr.
Shepherd: I am damned!
The original Actthe
Regulation of Investigatory Powers Act 2000which these orders
amend, was controversial and gave enormous powers to central
authorities. My concern, as I tried to express it, relates to the
extension of thatthat is the essence of it. With the best will
in the world, if the Minister had recited the powers available under
the 2000 Act, hon. Members would have been more cautious about
accepting these measures. The powers are phenomenal. I am referring to
the tracing that can be done through the requirement for Vodafone and
other such companies to maintain records. The powers are also now
available in respect of the Driving Standards Agency. I think that
these measures are a sledgehammer to crack a nut. What does the
Minister have to say to
that?
Mr.
McNulty: I profoundly disagree. I shall not rehearse all
the points and give my hon. Friend the Member for Luton, South
(Margaret Moran) nightmares about revisiting the substantial
proceedings that took place on the Act. We are talking specifically
about these orders. As I said, there is a range of criminal and other
illicit activities that all these public authorities are charged with
doing all they can to prevent. I freely accept the point made by the
hon. and learned Member for Torridge and West Devon (Mr. Cox) about a
clear interface with the legal system.
Crucially, on the point made by
the hon. Member for Newark about communications data, he is right to
this
extent: we are talking simply about the flow and traffic of the data,
because otherwise we come back to the point made by the hon. and
learned Member for Torridge and West Devon about the interface with the
law and the criminal justice system. This is not about opening up those
data to look at the contents. That would be overly intrusive and is
governed by the warrant system and other things that stand outside THE
RIPA. I do not take
the point, nor do I accept the hon. and learned Gentlemans main
charge. It was almost a belittling of illegitimate, illegal activities
that the public authorities are charged with tackling. It is imperative
that we, as the House, ensure that they have all the equipment and
arsenal to hand to deal with the regulatory functions. The order is not
an overreaction. It is not disproportionate. As I have said, all the
checks and balances are in place in respect of the commissioners,
scrutiny back to Parliament and the ability to take authorities on and
off the list. In that context, withoutI hasten to
addrepeating the title of each order, I commend them to the
Committee. Question
put and agreed
to. Resolved,
That the Committee has
considered the draft Regulation of Investigatory Powers (Directed
Surveillance and Covert Human Intelligence Sources) (Amendment) Order
2006. DRAFT
REGULATION OF INVESTIGATORY POWERS (COMMUNICATIONS DATA)(ADDITIONAL
FUNCTIONS AND AMENDMENT) ORDER 2006
Resolved, That
the Committee has considered the draft Regulation of Investigatory
Powers (Communications Data) (Additional Functions and Amendment) Order
2006.[Mr.
McNulty.] Committee
rose at one minute past Three
oclock.
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