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
authoritys 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
commissioners 2008 report on the bugging of Babar
Ahmads 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 Majestys 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 ones lawyer is an
important element in the preparation of a defendants 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 orders 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 commissioners 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 officerthe Minister referred to that as part of the
corporate leadership teamwe 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 chargewhich I believe has still not
been answeredthat 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 Ministers 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 frameworksuch 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 thenwe 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 centrallyits headquarters in Whitehallhas 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 investigationsthey 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
recordedusually for training purposes is the
reason given. But there is a danger that we could allow liberties to be
taken with peoples 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 Ministers 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 oversightan 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
surveillancecovert surveillance in residential premises, in
private vehicles or via a surveillance devicethe 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 homeof family activitiesand 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
surveillancecovert surveillance in a public placecan
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.
On the other
hand, we have heard of local authorities using small pinhole cameras to
monitor a lay-by or a countryside site where fly-tipping frequently
takes place.
In that case, people might judgethough it is open to
debatethat that is acceptable, because the offender is
deliberately going to the site to commit the offence, rather than being
tracked through the entire day by surveillance techniques. Whichever
side of the fence one comes down on, these are controversial issues,
especially when the offence can be quite trivial and is tackled by very
intrusive, directed surveillance methods.
These powers
are almost entirely self-authorisedcertainly 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 individuals 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
Ministers explanation as to why it has taken that longa
little over a yearto try to rectify the
issue.
3.2
pm