Joint Committee On Human Rights Third Report

2. Letter from Lord Filkin, Parliamentary Under-Secretary of State, Home Office,

to the Chairman


Thank you for your letter of 5 December reporting the initial findings of the Committee in respect of the Bill. I am sorry you found the reference to ECHR issues in the Explanatory Notes unhelpful, but I trust I can answer the Committee's questions now.

Part one, Chapter four: Customer Information Orders and Account Monitoring Orders

The Committee seeks a more detailed explanation of why we consider these provisions to be compatible with Convention rights, and in particular with Article 8 ECHR. The Government considers that Customer Information Orders and Account Monitoring Orders, as established by the Proceeds of Crime Act 2002, potentially engage Article 8(1) ECHR, but the right to respect for private and family life enshrined in Article 8(1) is qualified by Article 8(2). Any proportionate infringement of Article 8(1) may be justified if it is in accordance with the law and necessary in a democratic society in the interests of the prevention of disorder or crime, or for the protection of the rights and freedoms of others. For this reason, the Government considers that the making of Customer Information and Account Monitoring Orders in the circumstances set out in clauses 32 and 35 (and, for Scotland, clauses 37 and 40) is justified within Article 8(2) ECHR. Furthermore, the making of these Orders will be a matter for a judge (or, in Scotland, a sheriff) and clauses 33(1) and 36(1) (and, in Scotland, clauses 38(1) and 41(1)) set the conditions that the judge or sheriff must take into account.

There is no specific reference on the face of the Bill to the need to abide by ECHR rights because, under section 6(1) of the Human Rights Act 1998, it is unlawful for a public authority to act in a way that is incompatible with ECHR. The Government takes the view that the necessary safeguard against unlawful interference with private or family life in the making of these orders is co-extensive with the protection guaranteed by the Human Rights Act and that this safeguard does not need to be repeated in a Bill subsequent to that Act. The Human Rights Act applies to all legislation. It would be confusing and superfluous to draft on the basis that its provisions do not apply to a particular Bill, or that they need repetition in order to take effect. The Government's position here is supported by a Memorandum to the Committee by the Lord Chancellor's Department in May this year, responding to a letter from the Chair of the Committee to the Leader of the House of Commons, copied to the Lord Chancellor, dated 14 February 2002.

The Committee has questioned, in particular, the ECHR compatibility of clauses 32(7) and 35(6), and, for Scotland, clauses 37(7) and 40(6), which provide that orders are to have effect in spite of any restriction on the disclosure of information (however imposed). The Government is satisfied that these provisions will be interpreted in accordance with the ECHR rights for the reason given above, and consider that the provisions make it clear that there is otherwise no legal impediment to making these types of order—and that it would defeat the object of such orders if this were not the case. The Government also notes that these clauses adopt the same drafting as sections 368 and 374 and, for Scotland, sections 402 and 407 of the Proceeds of Crime Act.

Part four, clause 83: Cross-border surveillance by overseas police officers

The Committee has asked for an explanation of why we consider that there are sufficient safeguards in place to ensure that the requirements of Article 8(2) of ECHR are met. Subsection (1)(a) of the new Section 76A of the Regulation of Investigatory Powers Act inserted by clause 83 states that for the legal protection of RIPA to apply, the surveillance in question must be "lawful under the law of the country or territory in which it is being carried out". As all Schengen states are signatories to ECHR, surveillance, in order to be lawful in any of those states, would have to be proportionate under the ECHR. Second, the automatic authorisation under section 76A only applies where it is not reasonably practicable for the foreign officers to request in advance that the surveillance is taken over by UK officers. Furthermore, the foreign team will be obliged by an order made under section 76A(4) to contact a UK police officer immediately on arrival in the UK. Under section 76A(7), if it appeared to that officer that the surveillance was not proportionate under the terms of Article 8(2) ECHR, that officer would order the foreign team to cease their surveillance immediately.

The Committee notes that intrusive surveillance in particular represents a significant intrusion into an individual's private life. Intrusive surveillance is defined in RIPA as surveillance on any residential premises or in a private vehicle. Whilst it is accepted that surveillance under section 76A could involve a device in a private vehicle it will not involve surveillance in residential premises. Indeed, the order to be made under section 76A(4) will make surveillance under section 76A conditional on the foreign officers not entering private homes and places inaccessible to the public.

The Committee commented that the Bill does not appear to import the RIPA safeguards. But a person who had been subject to surveillance by a foreign officer acting under the provisions of this Bill and who felt he had a grievance, would be able to complain to the independent Investigatory Powers Tribunal established by RIPA, in the same way as a person subject to surveillance by a UK officer would. This is effected by an amendment to RIPA found in paragraph 71 of Schedule 4 to the Bill.

I should add that we envisage these provisions being used only on rare occasions. While it is a requirement of the Schengen Convention to be able to authorise this type of unaccompanied surveillance by officers from other Schengen states, we expect that, in view of our island geography, the great majority of cross-border surveillance operations with our EU partners will be pre-planned operations, where the surveillance will be taken over by a British team acting under RIPA.

Finally, the Committee asks whether the Home Office has received any other representations relating to Human Rights issues in respect of this Bill. We have not, although we are aware that Justice have produced a briefing paper on the Bill.

16 December 2002

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