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Session 2009 - 10
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General Committee Debates
Delegated Legislation Committee Debates



The Committee consisted of the following Members:

Chairman: Mr. Roger Gale
Battle, John (Leeds, West) (Lab)
Blunt, Mr. Crispin (Reigate) (Con)
Boswell, Mr. Tim (Daventry) (Con)
Burns, Mr. Simon (West Chelmsford) (Con)
Dobson, Frank (Holborn and St. Pancras) (Lab)
Gidley, Sandra (Romsey) (LD)
Hanson, Mr. David (Minister for Policing, Crime and Counter-Terrorism)
Hepburn, Mr. Stephen (Jarrow) (Lab)
Holloway, Mr. Adam (Gravesham) (Con)
Huhne, Chris (Eastleigh) (LD)
Luff, Peter (Mid-Worcestershire) (Con)
McCabe, Steve (Lord Commissioner of Her Majesty's Treasury)
McGuire, Mrs. Anne (Stirling) (Lab)
Prosser, Gwyn (Dover) (Lab)
Raynsford, Mr. Nick (Greenwich and Woolwich) (Lab)
Reid, John (Airdrie and Shotts) (Lab)
Simon Patrick, Committee Clerk
† attended the Committee

First Delegated Legislation Committee

Monday 8 February 2010

[Mr. Roger Gale in the Chair]

Draft Regulation of Investigatory Powers (Communications Data) Order 2010
4.30 pm
The Minister for Policing, Crime and Counter-Terrorism (Mr. David Hanson): I beg to move,
That the Committee has considered the draft Regulation of Investigatory Powers (Communications Data) Order 2010.
The Chairman: With this it will be convenient to consider the draft Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2010.
Mr. Hanson: I am grateful that we can debate both orders together. The first order is part of the Government’s plans to update the framework for the Regulation of Investigatory Powers Act 2000, known as RIPA. We seek to do five particular things. First, we want to ensure that only those public authorities with a justified need to be able to authorise certain covert techniques under RIPA can do so. Secondly, we want to provide clearer guidance on when RIPA should or should not be used, especially by local authorities, which has been an issue of some debate and concern. Thirdly, we want to strengthen authorisation procedures in local authorities. Fourthly, we want to continue to reduce unnecessary police bureaucracy and, fifthly, we want to clarify the basis on which the covert surveillance related to private discussions between a constituent and Member of Parliament on constituency business can be authorised under RIPA. Sixthly, we are enhancing authorisation procedures needed before legal and privileged consultations may be subject to covert surveillance authorised under RIPA.
Consultation on the matters took place during the summer, the results of which we published early this year. The responses that we received were broadly supportive of the proposals and there was specifically little appetite and no consensus for removing public authorities as a whole. The communications data order relates primarily to the first of the objectives that I have outlined, which is the need to ensure that public authorities are listed under RIPA only when they have a legitimate need to use covert techniques that it regulates. It also deals with matters related to authorisation within local authorities. We are holding discussions later in the week on other matters.
The consolidating order sets out exactly who in public authorities may authorise access to communications data under RIPA and the statutory purposes for which they may do so. It consolidates several legislative measures from 2000 to today. One of the key changes is that we have proposed to raise the rank of authorising officers in local authorities to at least director level, which I hope will give a senior oversight of such issues. It will ensure that local authorities do not abuse their powers and we shall debate some measures relating to that on Wednesday of this week in Committee.
We have also accepted the business need to grant access to certain types of communications data under RIPA to three public authorities already in the RIPA scheme. They are the Northern Ireland Prison Service; the Department of the Environment in Northern Ireland and the Child Maintenance and Enforcement Commission. The order will lift the limitation on the Department of Transport accident investigation branches, which confines them to obtaining subscriber detail only. As the Committee will be aware, in accident investigation, traffic data will be crucial in determining whether communication problems contributed to an accident.
The first order covers other measures such as adding the additional purpose of identifying when a person has died or is unable to identify themselves as grounds for which the Independent Police Complaints Commission and the Prison Service may obtain communications data. It will also remove the ability of the Port of Liverpool police and the Port of Dover police to acquire communications data for national security purposes, the ability of the Health and Safety Executive to acquire communications data in an emergency and the ability of the Food Standards Agency to use public safety as a purpose. I hope that the Committee will accept the minor changes that will also be made under the first order.
The second order lists in one place those public authorities able to authorise the use of the two covert techniques under the Act. In essence, directed surveillance is covert surveillance in public places. Following review and discussion, we propose first to add the use of covert human intelligence sources for the Health and Safety Executive, which, following reorganisation, has inherited the responsibility from the Department for Environment, Food and Rural Affairs to investigate the sale of dangerous counterfeit and unapproved pesticides. We have also added the use of direct surveillance and covert human intelligence sources to the Welsh Assembly Government fisheries unit, which has now inherited DEFRA’s previous responsibilities for combating illegal fishing.
We propose to remove several areas in the order: the use of covert intelligence sources by the Ministry of Defence—the Ministry, not the Army, Navy or Air Force—the Child Maintenance Enforcement Agency, the Driving Standards Agency, the Department for Work and Pensions, the Port of Dover police, which I know will be of interest to my hon. Friend the Member for Dover, and the Postal Services Commission and the Royal Mail.
Finally, we have removed the use of direct surveillance by the Ministry of Defence—the Ministry of Defence headquarters—and the use of the economic well-being purpose from Her Majesty’s Revenue and Customs. All other issues are consolidating measures and there are minor amendments reflecting name and organisational changes.
As in previous orders listing public authorities subject to RIPA, a number of authorities have arrangements where, in certain circumstances, a more junior officer may authorise the use of surveillance techniques in urgent cases. The arrangement is tightly defined and strictly limited by the statutory codes of conduct, which make it clear that authorisation is reserved for instances where further delay would endanger life or jeopardise an investigation or operation. Indeed, they would have to be endorsed in due course by the designated urgent grade after 72 hours.
I hope that the Committee will accept the consolidating changes, and I am happy to answer any questions. I commend them to the Committee.
The Chairman: I should explain to the Committee that the first order has been moved, but we are debating both. If a vote is called, we will vote on the first order, and the second order will then be moved formally and voted on.
4.37 pm
Mr. Crispin Blunt (Reigate) (Con): It is a pleasure to serve under your chairmanship, Mr. Gale.
The orders are substantial and important pieces of subsidiary legislation. The sheer number of requests for communications data from public authorities demonstrates the importance of the first order today. In 2008, 504,073 requests were made to obtain communications data. That is equivalent to 1,400 requests a day. While that is a slightly lower figure than in 2007, it is still a sharp jump from 2006, when just over 250,000 requests were received. What figures can the Minister give us for 2009 for all or part of the year for which he has figures available? Is there any change in the trend that the Committee ought to be aware of? What is the cause of the doubling of the figures between 2006 and 2007? Are we sitting astride an increasingly permissive attitude by the public authorities as to when it is appropriate to use communications data in investigations?
As the Minister said, it is the local authorities’ use of the powers that has been of most public concern. That is reflected in the Government’s proposed change in the orders so that authorisation on communications data within local authorities is raised to director level. They have been accused of using the powers to obtain information about trivial offences such as littering and dog fouling. However, in his latest report, the Information Commissioner, Sir Paul Kennedy, claims that
“no evidence has emerged from the inspections which have been conducted during the last three years to indicate communications data is being used to investigate offences of a trivial nature.”
That appears to be inconsistent. I referred to Sir Paul Kennedy as the Information Commissioner, but of course he is the interception of communications commissioner. It is fairly easy, with a number of different commissioners in this area, to get slightly confused. However, Sir Paul’s view appears to be inconsistent. Is it the Minister’s view that Sir Paul has a different view from the media and the general public on what constitutes a trivial offence? Or was the information released by the individual authorities in response to freedom of information requests and those reported in the media incorrect? My observation is that it seems extraordinary for Sir Paul to reach his conclusion when the surveillance commissioner, Sir Christopher Rose, described local authorities’ use of directed surveillance as exhibiting
“a serious misunderstanding of the concept of proportionality.”
The Committee should also be aware of the enormous disparity between the practice of different local authorities. I will be grateful for the Minister’s explanation, when he replies, as to why only 123 out of 474 local authorities made use of such powers in the period covered by Sir Paul Kennedy’s report for 2008. The non-users cover more than half of the public bodies previously approved by Parliament, under existing orders and as confirmed by today’s orders. It is in that area that such powers can fall into disrepute.
Sir Paul points out in his report that interception of communications data is an invaluable weapon in the fight against terrorism and serious crime. It is essential to retain the weapon in the hands of the authorities and not to have public confidence in such powers undermined. However, the collection of communications data is an intrusion into people’s privacy. It is not something that should be authorised for offences that are not serious—our view is that the collection of communications data should only be authorised to investigate serious offences, which would warrant a jail sentence, or to aid the emergency services in situations in which life and limb are in danger.
Any future Conservative Government would restrict the powers of local authorities to access communications data and to authorise directed surveillance. Councils would be allowed to access communications data only for the purpose of assisting investigation into serious crimes, which are subject to a custodial sentence. Requests for authorisation to access communications data would need the approval of the leader of the council, not simply the director, and require the prior approval of a magistrate’s warrant, thereby introducing democratic and judicial safeguards. That is a proportionate approach, consistent with human rights. However, Mr. Gale, as you may be about to point out, today’s order is not the mechanism to introduce such a change.
The order adds to the already lengthy list of public authorities authorised to obtain communications data: the Child Maintenance and Enforcement Commission, the Northern Ireland Office and the Department of the Environment in Northern Ireland. What offences would they be using communications data to investigate? Has proper consideration been given to whether they could be adequately investigated using less obtrusive techniques or by inviting the police to assist the bodies with their inquiries? More generally, how is the decision to grant public authorities such powers arrived at? What factors are taken into account before deciding that the extension of the powers is a strictly proportionate and necessary step? Those are questions to be answered about the organisations that already have such powers; we should examine properly whether they should be allowed to retain them.
One example in the list on communications data that has caught my attention is that of the Charity Commission. According to the Government, it is necessary for the Commission to investigate matters such as fraud, money laundering and links to terrorist organisations. While it would certainly be proportionate to use communications data to investigate serious offences such as those, would they not also be matters for the police to investigate, if they are at that level of seriousness? Would it not be better to leave intrusive investigative powers in the hands of fewer public authorities, which are best trained to investigate the offences that warrant their use. I was not able to find the Charity Commission listed in the second order, on directed surveillance and covert human intelligence sources, and I shall be grateful if the Minister explains and offers guidance on how the commission’s powers will continue under that order.
There has also been considerable concern about the training for local authority employees in the processing of applications for communications data. The commissioner’s most recent report highlighted that concern, stating that they did not have the same training as their counterparts in other public authorities, and were therefore unable to attain the best possible compliance with the code of practice. The Home Office, the Association of Chief Police Officers and, I think, the Department for Communities and Local Government were drafted in to remedy the situation. Will the Minister update the Committee on any progress that has been made in ensuring that local authority officers are properly trained? In particular, have the specialist staff in the public authorities to which the orders extend powers been given training to comply with the code?
The second order has been the subject of more public controversy, particularly over the use of intrusive investigatory powers using directed surveillance and covert intelligence sources. Again, local authorities have been at the forefront of the controversy. Media reports and freedom of information requests have disclosed that directed surveillance and covert intelligence sources have been used to spy on paperboys, to check whether a village newsagent has obtained work permits from them, and to check whether a nursery was selling pot plants unlawfully and whether fishermen were selling crabs illegally.
Further examples include, among others, the infamous case of Poole borough council spying on a family to check whether they were living in the correct catchment area for their children’s school and the detection of under-age smoking and of fairy-light thieves. Is it any wonder that an impression can be created with the public that those powers are being abused? I emphasise how important those powers are for the detection and prevention of terrorism and serious crime, which is why it is so damaging when public authorities use them for such trivial matters.
In the year between 31 March 2007 and 31 March 2008, there were 9,535 directed surveillance authorisations granted to public bodies—nearly 30 a day. Will the Minister tell the Committee whether the majority of those were used to combat serious threats to public safety and against terrorism, or were they authorised to protect us from the perils of unlicensed paperboys, stolen fairy lights and unlawful pot plants?
Let me remind the Minister of the surveillance commissioner’s own conclusion, which was that there has been
“a serious misunderstanding of the concept of proportionality”
in the use of directed surveillance and covert human intelligence sources. I therefore hope that the restrictions on the grounds for which surveillance may be authorised, imposed on public authorities by sections 29(3) and 39(3) of RIPA and by article 5 of this order, are adhered to rigorously in future. Public safety is of the utmost importance, but so is people’s right to privacy. The law exists to protect the public, including from the disproportionate intrusion of the state into their private affairs. There is evidence to show that that has been happening.
Again, I am concerned by the number of authorities that are now authorised to use directed surveillance and covert intelligence sources. They are therefore able to collect a large amount of private material about members of the public. While the case has been made for each authority’s use of the powers—I am sure that they are highly desirable for the authorities in question—are they really unable to conduct their duties without them?
Will the Minister assure us that a proper test of proportionality has been carried out? Is he certain that the high levels of intrusion into people’s privacy are necessary for the investigations of all those organisations? He might use the example of the Charity Commission to tell us how many times it has needed those powers. On such occasions, could the Charity Commission inquiry have co-operated with the police as the body exercising the powers?
I am not arguing that those bodies cannot make use of the powers, or that the powers are not desirable for the authorities in question. However, the gravity of the offences being investigated needs to be weighed against the undesirable and intrusive spread of state powers. I wonder if we have achieved the right balance. Can the Minister outline the decision-making process undertaken in giving public authorities such powers? I am intrigued to hear from him an example of an authority that wanted but was not granted the powers, and why that authority did not make the cut to get into the schedule.
Can the Minister further explain the changes made in the orders? Why has the Ministry of Defence been removed from part 1 of the schedule? What alteration of circumstances made its inclusion no longer necessary? I also note that the Port of Dover police, the Department for Work and Pensions, the Postal Services Commission and the Royal Mail have been removed from part 1 of the schedule to part 2, thereby being stripped of their powers to authorise the use of covert intelligence sources. Has there been a substantial change to their remit so that the powers are no longer necessary, or were their powers unnecessary in the first place?
The Minister made a remark about the Health and Safety Executive, which appeared to give a narrow definition of when the HSE could use the powers. What are the other restrictions on the HSE, in addition to the statement he made to the Committee today, that would limit the objective of the powers being used by the HSE?
Both orders concern important capabilities for the state and its public authorities to detect and prevent serious breaches of law and order that pose a threat to our citizens. We must permanently assess the balance between public safety and the privacy of individual members of the public. Getting that wrong will foster public suspicion and hostility towards techniques that, when used properly and proportionately, are vital tools in combating crime and terrorism. I hope that the consolidating orders will improve our ability to get the judgment right. We shall not oppose them this evening.
4.52 pm
Sandra Gidley (Romsey) (LD): It is a pleasure to serve under your chairmanship, Mr. Gale. In order to save the Committee time, I shall not make all my comments, because many—the statistics and some of the examples—have already been made.
The Liberal Democrats support use of RIPA when public disorder or a link with terrorism are clear, but we are concerned about the drift towards the wider use of the Act. Originally, only nine public bodies were supposed to be included, but the number has now increased to more than 40. There seems to be a drip-drip-drip approach, gradually increasing the potential for surveillance.
4.53 pm
Sitting suspended for a Division in the House.
5.8 pm
On resuming—
 
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