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

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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 Minister’s 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 not—because I am fed up of doing it—apologise 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 Minister’s 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 Act’s original intention, moving into what is essentially the ordinary concourse of our lives—the Driving Standards Agency, no less. Why does it need such extraordinary powers as those contained in the Act and introduced in this order?
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 Gentleman’s 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.
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. Gentleman’s 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. Shepherd rose—
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 to—I shall call him my hon. Friend, if that does not damn him too much.
Mr. Shepherd: I am damned!
The original Act—the Regulation of Investigatory Powers Act 2000—which 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 that—that 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.
I do not take the point, nor do I accept the hon. and learned Gentleman’s 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, without—I hasten to add—repeating the title of each order, I commend them to the Committee.
Question put and agreed to.
That the Committee has considered the draft Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) (Amendment) Order 2006.


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 o’clock.
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