The
Committee consisted of the following
Members:
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 Governments 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 DEFRAs 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 Defencethe Ministry,
not the Army, Navy or Air Forcethe 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
Defencethe Ministry of Defence headquartersand the use
of the economic well-being purpose from Her Majestys 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
Governments 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 Pauls view appears to be inconsistent. Is it the
Ministers 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.
What
makes the conclusion all the more remarkable is that the number of
requests to carry out directed surveillance in 2008 was only
9,535one fiftieth of the level of the frequency of
requests to access
communications data. One would have thought that the use of
communications data would produce more questionable issues, because it
is far more prevalent and less intrusive than directed surveillance.
One would imagine that the officers who have been charged with the
responsibility for authorisation would have set the bar lower for
communications data than for directed surveillance. I suspect that the
scale of the oversight required on 0.5 million requests for
communications data a year and the lack of knowledge of the target of
the request for communications data might account for the
disparity, rather than a lack of concern about the reason for which
communications data requests are
made.
The
Committee should also be aware of the enormous disparity between the
practice of different local authorities. I will be grateful for the
Ministers 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 Kennedys 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 todays
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 peoples privacy. It is not something that should
be authorised for offences that are not seriousour 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 magistrates 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, todays 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 commissions
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 commissioners 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 childrens 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
bodiesnearly 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 commissioners 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 peoples 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
authoritys use of the powersI am sure that they are
highly desirable for the authorities in questionare 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
peoples 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 manythe statistics
and some of the exampleshave 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