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Baroness Seccombe: My Lords, I thank the Minister for his explanation of the order. Although some of the orders which follow on from the passage of the Regulation of Investigatory Powers Act are controversial, we accept that this is not one of them. As my honourable friend Dominic Grieve made clear in another place, we believe that the draft order's objective is eminently sensible.
RIPA contains a provision that places an obligation on service providers and the draft order defines it. It does not go to the issue of what should be intercepted, but it shows how the matter should be intercepted. We are satisfied that the draft order is acceptable to the public service providers themselves.
My honourable friend pointed out that it would be desirable for Parliament to be kept informed about the continuing discussions about what will be defined as a fair contribution to costs incurred by public telecommunications services as a consequence of the order. There should be a contribution to their costs. After all, their job is not to intercept people's communications. That work is only done at the Government's specific request.
In his response, the Minister in another place stated that it was reasonable to ensure that during the discussions the Government are transparent with Parliament. He undertook to find mechanisms for so doing. Will the Minister give that same assurance tonight and therefore assure this House that noble lords will also be kept fully informed on these matters? With that one mild reservation, we recognise that this order should be welcomed as it is a good step to resolving satisfactorily the problem of how to undertake interception when it is needed.
Lord McNally: My Lords, it is funny how a tune, a smell or a taste can bring waves of nostalgia. When I picked up the Explanatory Note for this order and started to read it, suddenly I was wafted back two years to nights of pleasures that the noble Lord, Lord Bassam, and myself had on the RIP Bill, as it then was. Suddenly, the nature of some of those debates came back.
Although, as the noble Baroness says, this is not about the practical operation of RIPA, it touches on two issues I remember well that we discussed in some detail during the passage of the Bill. The first, as she has rightly said, was that we wanted assurances at the time—indeed, it was a concession won in this House—that the CSPs, the communications service providers, would not be unfairly burdened by cost in carrying out an operation which was in the national interests, in the fullest sense of that word. We welcomed the provision of £20 million over three years.
It is interesting, as the Minister said, that £14 million was spent last year. I wonder whether that was the impact of 11th September or whether operationally we have found that the cost is slightly more than was anticipated when the Bill was first passed. Some clarification would help.
The other item which was a direct result of pressure in this House was the setting up of the Technical Advisory Board. I remember there was some reluctance by the Government and their side of operations to have the board. It would be interesting to see how it is working in practice. It seems to have done a job in giving the order a clean bill of health. At the time there was doubt whether TAB would be robust or independently-minded enough to carry out its job as a kind of referee between the security services and the providers. There is a constant balance to be found between "want to know" and "need to know". At that time there was concern whether we would have unfair, onerous duties put on CSPs because of a voracious appetite by the security services for these facilities with the knock-on effect on costs and technology. So I hope that the TAB, which was
established as a kind of referee, is working well. It would be interesting to know what is the assessment of that. Knowing the lobbying that I received during the passage of the Act, if it were not, I know that the Internet community would have been bombarding me with e-mails to tell me so. So I am taking silence as an indication that it is working well and that the balance of six government and six independent assessors is right. Has the Minister any comments about that?That apart, like the noble Baroness, Lady Seccombe, we find the order entirely acceptable—the more so because it contains within it two of the concessions that the noble Lord, Lord Cope, and I won from the Government during those happy days spent two years ago with the noble Lord, Lord Bassam.
Lord Filkin: My Lords, I shall be pleased to pass those fond memories on to my noble friend, who will be delighted to receive them. I thank both Front Benches for their positive support and acknowledgement of the role played by this House in developing the Act. We are now experiencing some of the benefits of that. I agree that the issue of fair contributions to CSPs is important and am happy to repeat the undertaking given by my honourable friend in the other place.
With regard to costs, £14 million was indeed spent this year. I am scratching my head wondering why the sum spent appears to be so high in the current year. It certainly was not as the result of September 11th. Let me return to that in a moment. The £14 million was for on-going work with CPSs with existing capability. The £20 million is to establish a new capability, primarily for Internet interception. I hope that that makes it clear.
Lord McNally: My Lords, I am sure that it will be clear when I read Hansard.
But the core promise was that further negotiation with the CSPs continued. I think that £20 million was an amount plucked out of the air because none of us knew how it would work or what would be the pattern of demand. What both I and the noble Baroness want is an assurance that the House will be kept informed of the progress of negotiations with the CSPs and that the on-going pattern of expenditure is considered to be fair both by industry and by the Government.
Lord Filkin: My Lords, I agree. That was what I was confirming in short in my previous remark. I was touching in my introductory remarks on the fact that a working group was under way with the industry to try to identify a more sophisticated way to assess costs. In essence, that is to distinguish between the costs of establishing the infrastructure and the costs associated with responding to warrants. Those are essentially two drivers of costs: having in place the platforms or systems; and the frequency with which they are used. That work is on-going and, no doubt, at some stage, its results will be appropriately shared with any Members who are interested.
My further advice on expenditure is that the £14 million paid last year is likely to be the typical level. The £20 million may be additional. There is at least the potential for increased compensation through what is seen to be a fuller and more transparent formula.
I was also asked about the TAB. Of course, it is early days to assess it, but we hope that the silence on the personal computer of the noble Lord, Lord McNally, is a sign of it progressing well. We also hope that the balance of membership, including six from the law enforcement and security services and six from the industry, is a good one that places the existing dialogue and tensions into a forum in which people must at least explore and clarify the issues and then produce advice for the Home Secretary—which is, essentially, its route forward. No doubt, how that is working will be the subject of further debate.
On Question, Motion agreed to.
Regulation of Investigatory Powers (Covert Human Intelligence Sources: Code of Practice) Order 2002
7.46 p.m.
Lord Filkin rose to move, That the draft order laid before the House on 10th June be approved [33rd Report from the Joint Committee].
The noble Lord said: My Lords, in moving the draft order, I shall speak also to the Regulation of Investigatory Powers (Covert Surveillance: Code of Practice) Order 2002, because the two codes of practice have many common features.
Both orders have been laid under the Regulation of Investigatory Powers Act 2000. They have been made in exercise of the powers conferred on the Secretary of State by Section 71 of the Act. Section 71(1) requires the Secretary of State to issue codes of practice relating to the exercise and performance of powers and duties under that Act.
The codes support the Act by providing clear and, we hope, unambiguous guidance on authorising the carrying out of covert surveillance and the use of covert human intelligence sources. Section 71(3) requires all draft codes of practice issued under RIPA to be published and the Secretary of State to consider any representations.
The provisions in Part 2 of the Act provide, for the first time, for a framework for the use of covert surveillance and covert human intelligence sources that is compliant with the European Convention on Human Rights. The codes of practice provide a framework within which public authorities should operate, require that records are kept on the decision-making process and that issues of necessity and proportionality must be taken into account before an authorisation can be granted, to ensure consistency with obligations under the ECHR and the Human
Rights Act 1998. The orders do not add to the public authorities already covered by RIPA and listed in Part 1 of Schedule 1.Both codes also provide additional safeguards and a higher level of authorisation in cases where confidential information is likely to be acquired. The draft codes do not provide those public authorities with any additional powers. They set out further safeguards and place added restrictions over and above those already contained in RIPA for cases involving confidential information. I labour that point slightly, because there was previous misunderstanding of it.
The orders provide public authorities already covered by RIPA for those purposes and the public with clear and unambiguous statutory guidelines on the proper procedures and requirements for authorising the use of the provisions. In my view, the orders are compatible with the rights set out in the European Convention on Human Rights. I beg to move.
Moved, That the draft order laid before the House on 10th June be approved [33rd Report from the Joint Committee].—(Lord Filkin.)
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