REGULATION OF INVESTIGATORY POWERS BILL
Memorandum by JUSTICE
1.1 One of JUSTICE's principal concerns with the
Regulation of Investigatory Powers Bill is the significant reliance
the Bill places on secondary legislation. In many respects, the
Bill provides only a framework for regulation, to be given substance
and form by ministerial orders and (as yet unpublished) codes
of practice. As the scope and purpose of these delegated powers
are not set out with any clarity, the exact ambit of the Bill
1.2 This is particularly unsatisfactory in relation
to legislation that sets serious limits to rights. As it is not
possible to assess fully the human rights compliance of some of
the activities, it cannot be assumed with any certainty that the
Bill, when taken in conjunction with the secondary legislation,
will comply with European Convention on Human Rights (ECHR) standards
and with the Human Rights Act 1998 (HRA). In these circumstances,
it is questionable how a section 19 HRA statement of compatibility
can be made with any confidence. It also raises a question of
the extent to which the Bill complies with the principle that
interference with rights must be prescribed by law.
1.3 As no statement of compatibility needs to be
made in relation to delegated legislation, JUSTICE believes that
it is crucial that drafts of such legislation (including the codes)
be available for consideration alongside the primary legislation
during the course of the Bill's passage. As yet, nothing has materialised
despite various indications that they would be made available.
1.4 JUSTICE acknowledges that the scope of certain
of the delegated powers in the Bill has been limited by amendments
made in the House of Commons. In particular, we welcome the amendment
made to clause 44 of the Bill, limiting the order making powers
of the Secretary of State to designate "intrusive" surveillance
as "directed" surveillance. We also welcome the amendments
to clause 6 of the Bill, which remove the Ministerial order-making
power to add to the list of those who may apply for the issue
of an interception warrant. However, there remain several delegated
powers provisions which give cause for serious concern, and which
do not adequately ensure compliance with the Human Rights Act.
Below, we detail our most serious concerns in this regard.
PART I: Interception of Communications
CLAUSES 21 AND 24: ACQUISITION AND DISCLOSURE OF
1.5 Clause 21 which sets out the grounds to justify
the acquisition and disclosure of communications data
could potentially breach Article 8 privacy rights. Clauses 21(2)(a)
- (g) list a comprehensive set of grounds on which such data may
be legitimately acquired and disclosed. These include the interests
of national security, the prevention of crime, the protection
of public health etc. They cover - and indeed may go beyond -
the range of grounds on which, under Article 8.2 of the ECHR,
it is permissible to interfere with the right to private life.
The Article 8.2 grounds not expressly listed are the protection
of morals, and the protection of the rights and freedoms of others.
However, as the Home Office admits, it is unlikely that there
would be a need to authorise the disclosure of communications
data on these grounds.
1.6 However, clause 21(2)(h) allows the Secretary
of State to extend these grounds by order, subject to a negative
resolution procedure. As the main grounds of Article 8.2 are already
listed, it is difficult to see how any additional grounds will
comply with Article 8, unless they relate to the protection of
morals or the protection of the rights of others. Any perceived
need to cater for these two grounds would not seem to justify
the inclusion of such a broad delegated power, with the potential
to breach ECHR rights. JUSTICE therefore believes that clause
21(2)(h) should either be deleted from the Bill or be limited
to the two remaining grounds of Article 8(2).
1.7 Under the Bill, the disclosure of communications
data is to be authorised by a 'designated person' from one of
the 'relevant public authorities' (see clause 21 and clauses 24(1)
and (2)). The latter includes a police force, NCIS, NCS, Customs
and Excise, and the intelligence services. Clause 24 (1)(f) also
allows the Secretary of State the power to specify any public
authority not listed in clause 24. No limitations are set out
on the face of the Bill as to the public authorities that may
be so specified. The order-making power is subject to a negative
1.8 In view of the recent disclosure in Committee
that the Secretary of State intends to add some 32 other agencies
under a similar order-making power under clause 29 (see below),
JUSTICE believes that the intended purpose of this particular
power should be seriously questioned. In particular, the Home
Office should be asked to give details of other public authorities
that are, or are likely to be, given the power to acquire communications
data in the future. In order to comply with Article 8 ECHR it
is important that there is sufficient justification for each public
authority to act in a way which interferes with rights; the issue
should not therefore merely be left to adding a list at a later
stage. In any event, we believe the order-making power is too
broad and should be limited to the addition of only those public
authorities undertaking a law enforcement role. We would also
prefer to see the order being subject to the positive resolution
1.9 Further order making powers are contained in
clause 24(2) to prescribe the procedure for identifying the "delegated
persons" who may authorise the acquisition of communications
data. It allows the Secretary of State to prescribe by order the
office holders or ranks of officials within the relevant public
authorities. As prior authorisation is a key safeguard under Article
8, further details should be made available regarding the status
of those who are to be prescribed as 'designated persons' under
PART II: Surveillance and Covert Human Intellegence
CLAUSES 27 AND 28: AUTHORISATION OF 'DIRECTED
SURVEILLANCE' AND THE USE OF COVERT HUMAN INTELLIGENCE
2.1 Similar broad order-making powers are included
under clauses 27 and 28, which set out the grounds on which 'directed
surveillance' and the use of covert human intelligence sources
may be authorised respectively. Again, the Secretary of State's
power to add to the permissible grounds raises the same issues
of risking compliance with Article 8.2 as discussed above. In
light of the fact that the Minister, Charles Clarke, said at Committee
Stage in the House of Commons that he could not see any reason
why either should be authorised on grounds of the protection of
morals or the protection of the rights and freedoms of others,
JUSTICE believes that such powers should be deleted from the Bill.
CLAUSE 29: PERSONS ENTITLED TO GRANT AUTHORISATIONS
UNDER SECTIONS 27 AND 28
2.2 The order-making power under clause 29(4)(h)
to add to the agencies who may authorise 'directed surveillance'
or the use of covert human intelligence sources led to some surprise
revelations in debates in the House of Commons. It was announced
that it is intended to designate some 32 other agencies stages.
These include a wide range of government departments and public
authorities such as the Immigration Service, the Benefits Agency,
the Inland Revenue, the Food Standards Agency, the Post Office,
the Vehicle Inspectorate, MAFF, the Pesticides Safety Directorate
and all local authorities.
2.3 JUSTICE objects to this on two main grounds.
First, that the proposal is an abuse of the delegated procedures:
additions of this nature should be included on the face of the
Bill. As a result of Opposition amendments, the Minister, Charles
Clarke, indicated at Report stage that he would consider including
the agencies in a schedule, with a power to add at a later stage.
JUSTICE believes that this is, at least, preferable as it provides
greater legal certainty and guidance as to the range of public
2.4 Secondly, and possibly more importantly, we believe
it is insufficient to include these agencies merely on the basis
that they have 'indicated their wish to continue their use of
As it is acknowledged that the Home Office was unaware of the
current use of covert surveillance by many of these agencies,
it is essential that a proper inquiry is carried out to ensure
that the use of such techniques by each agency 'is necessary and
proportionate' to justify inclusion. On several occasions,
the ECtHR has, for example, said that the use of surveillance
should be limited to 'serious and defined offences' and that it
should not be exploratory or general.
It should also be limited to those cases where conventional means
of inquiry are ineffective or have been unsuccessful. Each agencies
request to be included in these surveillance powers need to be
tested against these requirements.
2.5 A further issue in relation to clause 29 is that
the order-making power is subject to a negative resolution procedure
only. We believe that this is seriously at odds with the significance
of the powers involved, and with their considerable potential
to infringe privacy rights and Article 8 of the Convention.
CLAUSE 39: 'INTRUSIVE SURVEILLANCE'
BY PUBLIC AUTHORITIES
2.6 The Secretary of State may add to those agencies
who may carry out "intrusive surveillance" under clause
39(1)(d). This is in relation to authorisations which have to
be approved by the Secretary of State, rather than by the Surveillance
2.7 In Committee, Ms Jane Kennedy, Parliamentary
Secretary at the Lord Chancellor's Department, said that the only
agency which the government envisaged adding under this clause
was the Department of Social Security. This begs several questions:
first, why this agency is not included on the face of the Bill?
Second, why is the authorisation procedure to the Secretary of
State rather than the Commissioner, as it is for the other law
enforcement authorities? And, third, why is it necessary to have
such a wide 'catch-all' clause in the circumstances? Given the
significant potential of 'intrusive surveillance' to interfere
with the protection of private life, it is particularly important
to clarify the limits of its use. JUSTICE considers that the government
should be asked to justify the inclusion of such a broad order-making
power in clause 39.
CLAUSE 44: CLASSIFICATION AS 'INTRUSIVE'
OR 'DIRECTED' SURVEILLANCE
2.8 The powers of the Secretary of State under clause
44 to shift the boundaries of what is considered to be 'directed'
or 'intrusive' surveillance have been limited by amendments passed
at Report stage. The power is now confined to providing that a
description of 'directed surveillance' is to be treated as 'intrusive
surveillance'. Contrary to the earlier drafts of the clause, 'intrusive
surveillance' cannot now be re-designated as 'directed surveillance'.
However, the Secretary of State retains the further power to extend
the application of Part II of the Bill to any surveillance that
does not meet the threshold of either 'directed' or 'intrusive
2.9 This modification of clause 44 meets the serious
concerns expressed by JUSTICE and others at Committee stage that
the Secretary of State could 'allocate' surveillance conduct in
a way that would be incompatible with human rights. However, we
remain concerned that the delegated powers under cl. 44 could
lead to uncertainty in the application of the Bill's provisions,
and therefore violate the principle under Article 8 that any interference
'prescribed by law' must be clear and accessible and certain in
its scope as to the circumstances in which an interference may
be authorised. Given the possible serious consequences of 'intrusive
surveillance', and the need for legal certainty with regard to
it, JUSTICE would favour the deletion of clause 44 in its entirety.
Part IV: Complaints Tribunal
3.1 As we detail in our human rights audit report,
significant aspects of the Tribunal's procedures are subject to
delegated legislation. It is therefore difficult to assess the
extent to which it is intended to remedy the kind of shortcomings
that JUSTICE has identified in relation to the existing tribunals.
3.2 In this respect, we would specifically refer
the Committee to paras. 6.8 - 6.12 of the audit report which deals
with the issues of applying judicial review principles, oral hearing
and disclosure of evidence, reasoned decision and appeals. As
the delegated power provisions fail to give a proper indication
of what procedures are to be enacted and in what circumstances,
it is again essential that the Home Office be asked to publish
draft rules etc. under this part of the Bill whilst it is being
debated in the Lords.
20 May 2000
10 Including e-mail addresses and web sites visited. Back
11 Charles Clarke, Report stage, Hansard 8 May 2000 col.609. Back
12 Klass v Germany 1980. Back