Select Committee on Delegated Powers and Deregulation Twenty-First Report



Letter to the Chairman from Lord Bassam of Brighton, Under-Secretary of State, Home Office

I was very grateful to your Committee for their swift consideration of the Regulation of Investigatory Powers Bill and for the letter of 24 May sent to me in time to inform Second Reading debate on 25 May.

As I indicated at Second Reading, I did appreciate the force of the Committee's observations as recorded in that letter. I have tabled some amendments as a result, though these amendments do not do exactly what the Committee recommends. The purpose of this letter is to explain why. I should add that I appreciate that your initial letter was only an early report of the provisional findings of the Committee. Whether we have done enough to meet your concerns is something that I intend to revisit in the context of your final report on this Bill.

The Committee raised two central concerns over this Bill. The first related to the four provisions in the Bill which authorise surveillance or other action for specified purposes but allow the list of purposes to be extended by subordinate legislation. These are in Clauses 21(2)(h), 27(3)(g), 28(3)(g) and 65(3). The Committee suggested that all these powers should be subject to the affirmative resolution procedure and that the limitation on these powers as contained in the Human Rights Act should somehow be expressed on the face of the Bill.

I have tabled amendments to ensure that all four powers are to be subject to the affirmative resolution procedure. These amendments should be moved in Committee and will, I hope, have the support of all sides. In defence of our initial decision not to use the affirmative resolution procedure, I should explain that we had considered that the limitation of the Human Rights Act would be such that the scope of this subordinate legislation would not be as wide as it might seem at first sight. The scope is specifically limited to any gap between the purposes listed in the Bill and the range of purposes permitted under the Convention. It was because this gap seemed to us to be relatively small that we opted for the negative resolution procedure. But I see the weight of your arguments and so have tabled amendments in response.

The limitation of the Human Rights Act mentioned above is germane to the point you had in relation to these four elements of subordinate legislation. The Committee considered that the scope of this subordinate legislation should be explicitly limited on the face of the Bill to what would be permitted by the Convention. I have absolutely no difficulty with the reasoning behind this recommendation. In practice, however, it has not been easy to accommodate and, I suggest, is not strictly necessary. I confess that our Home Office Memorandum could have been a little clearer on this point. As the Committee points out, it is certainly intended that any use of the subordinate legislation should be limited in practice by the Human Rights Act.

But, more significantly, this is a limitation in law as well as practice. When section 6 Human Rights Act comes into force, it will not be possible, as a matter of law, for the Secretary of State to make an order that is incompatible with any of the Convention rights. Therefore, I suggest, to repeat the limitation on the face of the Bill is unnecessary.

The second group of powers addressed in the provisional conclusions of your Committee addressed the powers at Clause 24(1)(f), Clause 29(4) and 39(1). In each case, the Committee suggested that where the Government already knew of public authorities that would be named in these orders, they should be named on the face of the Bill. We wholly accept this recommendation. You will see that we have tabled a new Schedule to the Bill listing those public authorities who are to be able to conduct directed surveillance or use covert sources. We intend to move this new Schedule at Committee and hope that it will have the support of all sides. Compiling such a list has involved a great deal of work across Whitehall and the need to do this has been one of the great benefits of the Human Rights Act. For the first time, and in one place, it will be possible to identify the various organs of state with the power to impinge on the right to privacy. This list has taken a little while to collate but we are now happy to name these authorities on the face of the Bill.

In respect of the powers at Clauses 24 and 39, the Government has not yet decided on any public authorities who should be able to use the powers in addition to those named on the face of the Bill. If the new Schedule is agreed at Committee, therefore, or the public authorities using all the powers in question will be named on the face of the Bill.

That was the first part of the Committee's recommendation in relation to this second group of powers. The Committee also recommended that any addition to the public authorities listed in the Bill should be by means of affirmative resolution. This is already provided for at Clause 39 and the amendments including the new Schedule would provide for this in relation to new public authorities using the powers at Clause 29.

The final recommendation of the Committee in relation to this second group of amendments was that any addition to the list of public authorities should be limited to those made necessary "because structures within an authority may change, making it necessary to update or amend the order". This justification, provided in the Home Office Memorandum, was for the slightly different power at Clause 29(1) of the Bill to prescribe the individuals within public authorities who can authorise directed surveillance or the conduct/use of covert human intelligence sources. In relation to the three aspects of subordinate legislation at issue here, I do not think this limitation would be strictly appropriate. As I have said, a great deal of work has taken place across Whitehall to establish the list of public authorities which now is tabled as a new Schedule for the Bill. However, it remains possible that the list may not be exhaustive. It is a widely accepted fact that the introduction of the Human Rights Act on 2 October will have implications, many unknown, across the public service. I fear that it remains possible that some investigative body will find that it needs to come in under the regime of the RIP Bill at some stage in the future. This could be for a variety of reasons, that technology has developed so that operations that previously did not invade privacy to a significant extent do so in the future, that case law revolves in relation either to the concept of surveillance, the nature of public authorities or the invasion of privacy more generally, or simply that the authority in question had not fully realised the impact of the Human Rights Act until it came into force. To add public authorities to the list would be a significant development, hence the need for affirmative resolution procedure to add public authorities to those listed under the Bill, but to constrain the use of the power still further seems a step too far.

I am glad that, due to the prompt action of your Committee, we have been able to table some amendments to improve this Bill. I hope those amendments will be welcomed by all sides at Committee in this House and I believe they meet the spirit of the concerns expressed by your Committee. I have to set out in this letter, at some length, the reasons why we have not felt able to do precisely what your Committee suggested. But I fully intend to revisit these reasons in the light of your final report and, if there are any lingering of the Committee at that stage, I should be very pleased to discuss them with you or the Committee generally.

I am copying this letter to Lord Carter, Lord Cope and Lord McNally.

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