12. LETTER FROM THE CHAIRMAN TO LORD FILKIN,
PARLIAMENTARY UNDER-SECRETARY OF STATE, HOME OFFICE
The Committee is considering whether to report to
each House on the above Bill. It has carried out an initial examination
of this Bill, and has formed the provisional opinion that the
Bill is compatible with relevant human rights obligations. The
Committee would, however, be grateful for your comments on the
following point raised by its Legal Adviser. Our startingpoint
is of course the statement made under s.19(1)(a) of the Human
Rights Act 1998; but I should make it clear that the Committee's
remit extends to human rights in a broad sense, not just the Convention
rights under the Act.
I would also like to take this opportunity to convey
the Committee's disappointment with the human rights elements
of the published Explanatory Notes to the Bill. These do not help
to make clear the reasons for making the statement of compatibility
under section 19(1)(a). Although several provisions of the Bill
clearly engage Convention rights, there is nothing in the Notes
to explain the Government's view that an interference with those
rights is justified in the circumstances. As a result, the questions
which follow have to cover a wider range of issues than might
otherwise have been necessary.
The points to which the Committee seeks your responses
1. Customer information orders and account monitoring
orders (clauses 32 to 46).
Disclosure of customer and account information affects
private life, and needs to be justified under ECHR Article 8.2.
The provisions would be clear enough to meet the test of being
'in accordance with the law', and would serve a legitimate aim
(prevention of crime) under Article 8.2. The question is whether
there are sufficient safeguards to ensure that the powers will
be used only where there is a pressing social need, and only interfere
with the right in ways that are proportionate to the need, so
as to be 'necessary in a democratic society' for the legitimate
purpose under Article 8.2.
These matters fall to be assessed on the facts of
each case (taking account, for example, of the relative degree
of seriousness of the criminal conduct being investigated, and
the fact that the account holder will be unable to protect his
or her own rights, since a financial institution would commit
an offence by informing him or her of the application or the order).
Unlike the position in relation to some other powers which the
Bill would confer, it seems that the express provisions of the
Bill could prevent judges from giving adequate force to these
considerations. In the case of both customer information orders
and account monitoring orders, the Bill provides that an order
'has effect in spite of any restriction on the disclosure of information
This could be taken as indicating that an order could be made
and then carried into effect notwithstanding any restriction on
disclosure of information (including restrictions arising under
the Human Rights Act 1998 and ECHR Article 8). The Committee has
previously taken the view that it is not good practice, in the
protection of Convention rights, to draft legislation in such
a way as to leave the applicability of the rights in doubt.
In the light of these considerations, the Committee
seeks an explanation of why these provisions, and particularly
clauses 32(7) and 37(7) (in relation to customer information orders),
and clauses 35(6) and 40(6) (in relation to account monitoring
orders) are thought by the Government to be compatible with Convention
rights and to offer an appropriate level of protection for the
right to respect for private life (ECHR Article 8) in particular.
2. Surveillance by overseas police and customs
officers without authorisation in the UK.
Under clause 83, the new section 76A to be inserted
into the Regulation of Investigatory Powers Act 2000 would allow
a foreign police or customs officer lawfully to conduct, without
authorisation and for a period of up to five hours, directed or
intrusive surveillance in the UK which would normally require
authorisation to be granted under the 2000 Act. The range of crimes,
in relation to which surveillance would be lawful, would be extensive,
and open to extension by order. The conditions laid down for the
lawfulness of the surveillance (under proposed new section 76A(1)
and (4)) would go some way towards protecting ECHR Article 8 rights,
but would apparently not import the safeguards of the 2000 Act
and the associated Code of Practice.
The inapplicability of safeguards under the 2000
Act seems to give rise to a potential weakness in the protective
arrangements for ECHR Article 8 rights. Directed and, particularly,
intrusive surveillance represent significant intrusions on the
right to respect for private and family life under Article 8.1.
It is not clear that the nature of the offences being investigated,
or the grounds for suspecting the person under surveillance, will
be sufficient to establish that the interference is proportionate
to a pressing social need to advance the legitimate aim of prevention
of crime under Article 8.2.
In the light of these considerations, the Committee
seeks an explanation of why the Government takes the view that
the provisions would provide sufficient safeguards to meet the
requirements of Article 8.2, especially bearing in mind the range
of offences to which the powers of surveillance would apply, the
safeguards against abuse, and the need to ensure that an interference
with a right under Article 8.1 is 'necessary in a democratic society'
for the legitimate purpose of preventing crime.
Finally, the Committee would be grateful for a description
of any other representations you have received in connection with
this Bill in relation to human rights issues, and of the specific
points to which those representations were directed.
The Committee would be grateful for a reply by the
time we break for the Christmas Adjournment, that is no later
than the morning of Thursday 19 December.
5 December 2002
136 Clause 42 Back
Clauses 32(7) and 37(7) (customer information orders), 35(6) and
40(6) (account monitoring orders) Back