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Delegated Legislation Committee Debates



The Committee consisted of the following Members:

Chairman: Mrs. Janet Dean
Ainsworth, Mr. Peter (East Surrey) (Con)
Austin, John (Erith and Thamesmead) (Lab)
Blunt, Mr. Crispin (Reigate) (Con)
Burgon, Colin (Elmet) (Lab)
Burns, Mr. Simon (West Chelmsford) (Con)
Clarke, Mr. Tom (Coatbridge, Chryston and Bellshill) (Lab)
Drew, Mr. David (Stroud) (Lab/Co-op)
Gerrard, Mr. Neil (Walthamstow) (Lab)
Hanson, Mr. David (Minister for Policing, Crime and Counter-Terrorism)
Holmes, Paul (Chesterfield) (LD)
Huhne, Chris (Eastleigh) (LD)
McCabe, Steve (Lord Commissioner of Her Majesty's Treasury)
Seabeck, Alison (Plymouth, Devonport) (Lab)
Smith, Chloe (Norwich, North) (Con)
Smith, Jacqui (Redditch) (Lab)
Tredinnick, David (Bosworth) (Con)
Eliot Wilson, Committee Clerk
† attended the Committee

Ninth Delegated Legislation Committee

Wednesday 10 February 2010

[Mrs. Janet Dean in the Chair]

Draft Regulation of Investigatory Powers (Covert Human Intelligence Sources: Code of Practice) Order 2010
2.30 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 (Covert Human Intelligence Sources: Code of Practice) Order 2010.
The Chairman: With this it will be convenient to consider the draft Regulation of Investigatory Powers (Covert Surveillance and Property Interference: Code of Practice) Order 2010 and the draft Regulation of Investigatory Powers (Extension of Authorisation Provisions: Legal Consultations) Order 2010.
Mr. Hanson: Welcome to the Chair, Mrs. Dean. I am pleased that we are going to consider all three orders together and thank the Opposition for the consideration that they have shown. I also thank my right hon. and hon. Friends for serving on the Committee, particularly my right hon. Friend the Member for Redditch, who knows a great deal about the orders because she was instrumental in advancing them as part of her Home Office responsibilities.
I shall speak first to the draft Regulation of Investigatory Powers (Covert Surveillance and Property Interference: Code of Practice) Order 2010. As I told the First Delegated Legislation Committee a couple of days ago, the Government are committed to making the regulatory framework provided by the Regulation of Investigatory Powers Act 2000 work. We need to ensure that public authorities that need to act in a covert way obtain information in a way that is compatible with human rights. The order will help indicate to the small number of authorities that have misused RIPA in the past that there is a clear code of practice that will give additional support and guidance. The order, along with those that we debated on Monday under the chairmanship of Mr. Gale, ensures that we have strong support to modernise the codes of practice and RIPA so that they are not abused.
Our proposals were subject to a public consultation over the summer. That consultation showed broad support for our proposals, which I shall summarise. The revised code of practice clarifies the test of necessity and proportionality by requiring public bodies to consider the seriousness of the offence in addition to the old requirement that they weigh up the benefits of covert techniques to their investigation. I indicated on Monday that there are a number of legislative options where local councils have to ensure that they enforce the law, and the use of covert techniques is often crucial to those concerned.
The code of practice provides examples to ensure that the tests of necessity and proportionality are better understood, and it gives clear guidance on what constitutes private information and, therefore, what is applicable to RIPA. It also gives guidance in relation to the separate orders on the use of covert surveillance or covert human intelligence sources in connection with legally privileged information, and in relation to provisions recently enacted by the Policing and Crime Act 2009.
On legal privilege, which is particularly important, the code makes it clear that covert surveillance or property interference should only be used in order to obtain knowledge of matters subject to legal privilege in the most exceptional and compelling circumstances, such as where there is a threat to life or limb, or to national security, and where covert surveillance is reasonably regarded as likely to yield intelligence necessary to counter the threat.
There has been particular concern about local authority use. The code suggests that local authority elected members review their authority’s use of RIPA, specifying as a minimum that elected members should review the local policy at least once a year and consider reports on its use every quarter. That will help give some oversight to the use of RIPA, and will remove some of the concerns that the Opposition have legitimately raised about the unjustified use of those powers. Moreover, as we debated on Monday, we must ensure that members of the corporate leadership team are responsible for ensuring that their authorising officer fulfils and maintains appropriate standards as required by the Office of Surveillance Commissioners.
The revised code also meets concerns raised by the chief surveillance commissioner’s 2008 report on the bugging of Babar Ahmad’s conversations with the Minister of State, Department for Transport, my right hon. Friend the Member for Tooting (Mr. Khan), which, as the Committee will remember, caused some concern. I was in the Ministry of Justice at the time and responsible for prisons, while my right hon. Friend the Member for Redditch was in the Home Office and responsible for the matters under discussion. The bugging at Her Majesty’s Prison Woodhill raised a need for clarification. The order will ensure that private discussions between a constituent and a Member of Parliament relating to constituency business are treated in line with other confidential information, such as discussions between individuals and medical practitioners, ministers of religion and journalists. That means that enhanced consideration and higher authorisation levels through, for example, an assistant chief constable are now required. Finally, the text has been generally revised to, I hope, make it more readable for the general user. Such documents have a habit of being undecipherable and we are trying to ensure that there is a positive code of practice.
The order that I moved at the start of the Committee provides similar support and a revised code of practice on covert human intelligence sources, which makes provisions equivalent to all those that I just outlined.
The third order, the Investigatory Powers (Extension of Authorisation Provisions: Legal Consultations) Order 2010, follows on from the House of Lords’ appeal judgment in the case of McE in March 2009. Their lordships then ruled that RIPA could in principle be used to authorise covert surveillance of legally privileged consultations in prisons, police stations or other criminal justice institutions, but that enhanced authorisation would be required.
The measures before the Committee today implement the House of Lords’ judgment by requiring directed surveillance, which takes place in premises used for the purpose of legal consultations, to be treated as intrusive surveillance. That means that we will need the enhanced authorised regime. Only public authorities will be permitted to carry out intrusive surveillance and that will require that senior level of authorisation. In fact, we go further than is required by the House of Lords’ judgment, by requiring a similar process for covert human intelligence sources.
In every case, the effect of the order is to require that authorisations for this type of surveillance require prior approval, either by the surveillance commissioner, or by the Home Secretary, for intelligence agency purposes. That gives additional security for the use of those powers.
I hope that the Committee can approve all three orders in due course.
2.37 pm
Mr. Crispin Blunt (Reigate) (Con): I welcome you to the Chair, Mrs. Dean. It is a pleasure to serve under your chairmanship. I will take first the order the Minister has just referred to: the Investigatory Powers (Extension of Authorisation Provisions: Legal Consultations). The order designates directed surveillance taking place in premises used for legal consultations, when such a consultation is taking place as intrusive surveillance. I agree with the Minister; this is a welcome safeguard for legally privileged communications as it will, in the first instance, restrict the public authorities who can gain access to legally privileged material, to the law enforcement and intelligence agencies and the Office of Fair Trading. We also welcome the concurrent enhancement of the scrutiny of authorisations by the Secretary of State, or a surveillance commissioner.
We have a long-established principle in this country that everyone is entitled to a fair trial. Private consultation with one’s lawyer is an important element in the preparation of a defendant’s case. People should retain their entitlement to speak freely with their legal counsel without fear of their conversations being monitored or recorded, unless the circumstances are quite exceptional. Will the Minister give us more detail about the order’s definition of legal consultation in article 2(a)(ii)? It states:
“a consultation between a professional legal advisor or his client or any such representative and a medical practitioner made in connection with or in contemplation of legal proceedings and for the purposes of such proceedings”.
While one welcomes the extra protection afforded to those communications, I would be grateful if the Minister went slightly further than simply saying that it is a circumstance such as a threat to life and limb, and gave us a hypothetical case study of an example that could arise under section 28(3), or section 29(3) of RIPA to intentionally gain access to this material. I think it would help the Committee to have some form of hypothetical case study to illustrate his example.
When could a medical consultation between a defendant and his representative or a medical practitioner be interpreted as of significance to the national security or economic well-being of the United Kingdom, or any of the other criteria listed as reasons for carrying out directed or intrusive surveillance?
Both codes of practice are more comprehensive and offer clearer guidance than their predecessors. I am pleased to see that public authorities may be required to justify, with regard to these codes, the use or granting of authorisations. We have recently seen, as the Minister pointed out, what I am tempted to call ludicrous cases of disproportionate covert surveillance authorisations. Only last month, Lancashire county council is reported to have used its powers of surveillance under RIPA during 2007, to spy on cleaners who repeatedly failed to show up for work, and a care assistant who claimed too much in travel expenses. No doubt those were disciplinary offences, but they hardly warranted covert surveillance. Although the provision is an important step in holding public authorities accountable, it would be convenient for the Committee if the Minister gave a summary of the powers and sanctions available to the commissioner to hold to account public bodies that fail to exercise appropriate judgments about proportionality, beyond their appearing in the commissioner’s annual report.
The Minister drew attention to the expanded guidance on proportionality in the codes of practice, which I welcome. I hope that in practice we will not see a recurrence of examples such as the ones that I just mentioned. Although we believe in principle in delegating authority, we shall have to hope that these codes are satisfactory and will suffice when their interpretation is placed in the hands of local authority officers. As far as communications data are concerned, where the Government talk about someone at director level in a local authority being the authorising officer—the Minister referred to that as part of the corporate leadership team—we would want these authorisations to be in the hands of the council leader directly. I made our policy clear on Monday and will not repeat it.
The tests set out in article 3.5 of the covert human intelligence sources code of practice and article 4.12 of the covert surveillance and property interference code of practice, could be seen as quite general. When considered alongside sections 28(3) and 29(3) of RIPA, they could give wider scope for investigations. We are going to rely on public authorities to show restraint.
Will the interests of national security be interpreted as applying to immediate threats to national security, or will people be able to take a long-term view of latent threats that might develop? If it is the latter, the net could be thrown very wide indeed for seeking authorisations. Some would say that the Government have been cavalier with their use of the term “interests of national security” and have used it to justify a number of what many have seen as unnecessary and intrusive incursions into civil liberties. That has led to a substantive charge—which I believe has still not been answered—that sometimes this has been more to do with political positioning than national security.
The economic well-being of the United Kingdom is another criterion that in practice could be used with very wide scope. Will the Minister define further what the Government believe constitutes a threat to the economic well-being of the United Kingdom? One could, and I would, make the case that the Prime Minister’s conduct of economic policy has constituted a threat to the economic well-being of the United Kingdom. Indeed, I will have pleasure in making the case in depth in the coming weeks, Mrs. Dean. Although I doubt that hon. Members on the Government side will overtly share my conclusion, I would like to hear from the Minister how the parameters of this criterion will be drawn.
Serious crime needs a more concrete definition. We have seen some interpretations of the criteria under sections 28(3) and 29(3) of RIPA by some public authorities, which challenge the proper meaning of “serious”. We would not want to face similar problems in relation to the covert obtaining of legally privileged material, which would be far more serious, in the proper sense of that word.
Will the Minister throw some light on the considerations and debates that have led us to where we are now, with the code of practice that is before the Committee? Was there a discussion about having a more comprehensive set of guidelines as to what constitute the interests of national security, the interests of public safety, and the purposes of protecting public health, the prevention and detection of crime and the prevention of disorder? Was a more prescriptive regime considered?
The use of covert human intelligence sources, in particular, is a highly intrusive form of surveillance, as it involves the manipulation of human relationships to gain information. What consideration was given to the merits of a more specific framework—such as limiting the use of methods of covert surveillance to investigating offences that are likely to result in a prison sentence? A greater degree of light thrown on the internal considerations as to why a more prescriptive regime was discarded would be of interest to the Committee.
I want to give some attention to the substantial new sections of guidance relating to legally privileged information and confidential information. We welcome the requirement for a higher level of authorisation to deploy a covert human intelligence source or to authorise covert surveillance or interference with property if it is likely that knowledge of legally privileged material or confidential information will be acquired. It is appropriate for the authorisation to come from a figure independent from the agency seeking the authorisation.
I would like to seek further clarification on the provisions and authorisation procedures in both codes relating to the Ministry of Defence, and actions likely to result in access to legally privileged materials. That comes under paragraph 4.5 in the code of practice on covert human intelligence sources and paragraphs 6.1 and 6.16 in the other code of practice. On Monday, we debated the draft Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2010. Unfortunately, Mrs. Dean, you were not in the Chair then—we had Mr. Gale, who is also an excellent Chairman. Article 2(2)(b) removed the Ministry of Defence from the list of public authorities able to authorise the use of covert human intelligence sources and directed surveillance in part 1 to schedule 1 of RIPA. When I questioned the Minister about the matter on Monday, he told me:
“The MOD centrally—its headquarters in Whitehall—has not made use of the power and does not wish to have it, although that does not preclude the Army, the Air Force or the Navy using it.”—[Official Report, First Delegated Legislation Committee, 8 February 2010; c. 12.]
I confess to being confused as to why there seem to be guidelines within the new RIPA code of practice relating to the activities of the MOD, but the MOD is no longer authorised to carry out those activities under RIPA. I am certain that there is a perfectly adequate explanation, and I shall be grateful if the Minister will give it to the Committee, even if he needs the expert assistance available to him.
I am also concerned about the provisions in both codes relating to lawyers as the subject of investigations—they are in paragraph 4.25 of the code of practice on surveillance and property interference and paragraph 4.15 of the code on human intelligence sources. The codes state that since a
“substantial proportion of the communications between a lawyer and his client(s) may be subject to legal privilege...authorising officers should consider whether the special safeguards outlined in this chapter apply.”
The clients in question may not be the subject of the investigation, and public authorities may be able to gain access to large amounts of legally privileged information on people who are completely unrelated to their investigation. I will be interested to see what reflections the Minister has on that.
Finally, paragraph 2.29 of the covert surveillance and property interference code of practice states that recording an interview with a member of the public, whether covertly or overtly, does not require a directed nor intrusive surveillance authorisation if the interview is given voluntarily and the person in question is aware that they are speaking to a representative of a public authority. In what circumstances does the Minister envisage representatives of public bodies covertly recording voluntary interviews without the knowledge of the person being interviewed? When suspects or witnesses are interviewed in a police station, it happens with their full knowledge that the interview is being recorded. When we telephone our bank, our mobile phone provider or practically any other commercial company, we are usually given the courtesy of being told that our conversation may be recorded—usually “for training purposes” is the reason given. But there is a danger that we could allow liberties to be taken with people’s trust, bringing public authorities into disrepute. Perhaps criteria should be in place to ensure that covert recording of anyone for any purpose is done with good reason and not for trivial purposes, and that in normal circumstances they should be aware that, if they are having a conversation with a public official, it is being recorded.
I look forward to the Minister’s answers on those matters.
2.51 pm
Paul Holmes (Chesterfield) (LD): The three statutory instruments bring in codes of practice to direct the use of surveillance. People have been concerned about issues in this area for some years. When the Regulation of Investigatory Powers Act 2000 was first passed, only nine organisations were allowed to invoke those powers. Now 800 different public bodies can do so, including local authorities, and quite often the powers are used to investigate minor offences. It is imperative to equip the police and intelligence services with powers to investigate criminal activity and threats to our security, but it is also crucial to have in place appropriate measures to safeguard against the misuse of such powers.
We fully support the provisions outlined in RIPA, but we are concerned about the widespread use of RIPA to investigate what are often quite trivial matters, out of all proportion to the original intention of the Act. One of the main problems with the use of the powers is the lack of judicial oversight—an outside legal overview of what is happening. Most of the surveillance techniques are self-authorising from within the public body concerned. The decision is taken by an official from within the body that wants to conduct the surveillance, which has many obvious implications. For the more intrusive surveillance techniques, authorisations are made by the Executive, but no authorisations under RIPA are made by a court of law. The European Court of Human Rights underlined the importance of judicial involvement in targeted surveillance in the case of Klass v. Germany:
“In a field where abuse is potentially so easy in individual cases...it is in principle desirable to entrust supervisory control to a judge.”
The draft codes of practice that we are looking at today do not include any type of judicial oversight or strong separation of powers. On that basis alone, we oppose their drafting and I propose to divide the Committee on that issue. In cases of intrusive surveillance—covert surveillance in residential premises, in private vehicles or via a surveillance device—the Home Secretary grants authorisation for applications from the intelligence service. In others cases, self-authorisation takes place by senior officials in the relevant organisation, which could be the police, the Serious Organised Crime Agency, Customs and Revenue, or the Office of Fair Trading. The problem is the lack of transparency and accountability, particularly in collateral intrusion cases, where surveillance takes place in the family home—of family activities—and it is not only the targeted person whose right to private and family life is infringed. All the members of the family and all the people who visit that household are affected.
Paragraphs 3.8 to 3.11 of the draft code propose simply to require the authorising officer to make an assessment of the risk of collateral intrusion. Given that intrusive surveillance of this kind is authorised by the Executive, by the surveillance commissioner or by self-authorisation, the public bodies are not transparent enough to determine whether surveillance is necessary or proportionate. No outside judgment is being applied.
In the first 72 hours, if it is judged urgent, surveillance can be undertaken without recourse to an authorising officer. Defining “urgent” is a very subjective assessment and, with no one having independent oversight, it gives rise to real concern about conflicts of interest. Will the Minister explain why, in those urgent cases, there cannot be recourse, as was often the practice, to out-of-hours and on-call judges, to provide that urgent but independent assessment of the need for intrusive surveillance?
Directed surveillance—covert surveillance in a public place—can cover a wide range of issues, some of which the public might support and some not. We have heard examples of local authorities using this type of surveillance to track down people who may be falsely claiming benefits or to trace where someone has chosen to live to get their child into a particular school. In those cases, it would appear that the powers are being abused, because particular individuals are being tracked through the daily pattern of their life.
These powers are almost entirely self-authorised—certainly in the non-urgent cases. At no point do they require external authorisation. It is clearly unacceptable for people to be allowed to self-authorise their own use of surveillance. If I were a council officer in that position, just as if I were a police officer in any of those situations, would I think that the surveillance I was asking for was necessary and justified? Of course, otherwise I would not have asked for it. That is the whole point of needing somebody to step outside, look from another point of view and without that conflict of interest.
The Minister suggested, in the case of local authorities, that elected members might undertake a review once a year. I was an elected member on a local authority for 12 years. I am not sure how effectively that could work. Would they look through every individual case? Would they have sufficient expertise to judge whether the surveillance techniques were infringing issues such as the right to a private and family life? Are local elected councillors expert enough to do that, or should we have proper expertise to judge this?
One could justify these powers by saying that they could be used in the case of any crime or in the prevention of disorder. The notion of disorder can be very broad and subjective. We have seen many times how various powers have been misused by the police, in policing perfectly legitimate demonstrations of public interest against arms fairs, for example, or the building of power plants. These powers do not have enough protection for such instances, where they could be used to take pre-emptive action against those who are exercising a legitimate and democratic right to protest.
The use of covert human intelligence sources is also a concern. Recruiting a human intelligence source who is going to establish or maintain an existing personal friendship and contact in order to use that as a source of information to the authorities, is a sensitive and intrusive issue. In 2007-08, there were 4,498 covert human intelligence sources recruited by law enforcement agencies, but there were also 204 recruited by other public authorities. There is an obvious danger if that starts to happen through a local authority. Local authorities sometimes employ expert witnesses, private detectives, and ex-police officers to amass information on antisocial tenants in cases in which the neighbours are too scared to collect and present the evidence. One can see how that could be done. However, that is different from recruiting someone who is either already a friend of the person under investigation, or who is deliberately sent to establish a friendship so that they can report from the inside on what is happening. The key problem, as with all the other examples that I have looked at, is that the recruitment of a covert human intelligence source could be an entirely self-authorising process for the authorities involved, with no external check or authorisation. It seems to be open to conflicts of interest and abuse. Will the self-authorising officer have the expertise to make a proper and balanced assessment of whether their actions interfere with the individual’s right to a private and family life under article 8 of the European convention on human rights?
The issue of recruiting a vulnerable person is problematic. The codes state that only in the most exceptional circumstances should a vulnerable person be recruited, but there is no definition of what those circumstances are. If we are recruiting a vulnerable person, for which there is a range of definitions, surely we should have clearer guidance on what the exceptional circumstances are. Finally, the order on the extension of authorisation provisions on legal consultations is being introduced to comply with a recent House of Lords judgment. It will provide an enhanced regime of surveillance in those circumstances and will be a more stringent regime, but it will still lack judicial oversight. We will oppose it because there is no judicial step from outside to look in and consider whether it is justified in these cases. The House of Lords judgment reluctantly considered that as no provision had been included in RIPA specifically to exclude surveillance of legal consultations, it was not unlawful to do so, even if legal professional privilege was involved, such as the case of the MP and his constituent that has been raised. Nevertheless, an earlier judgment found that RIPA could not justify surveillance of that kind. Two of the Law Lords expressed concern that the Government had carried on regardless. Therefore, unless there had been no surveillance of legal privilege consultations in the year between the two judgments, the Government had been knowingly sanctioning what, in effect, was illegal surveillance for longer than a year. It would be interesting to hear the Minister’s explanation as to why it has taken that long—a little over a year—to try to rectify the issue.
3.2 pm
 
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