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Lord Filkin: My Lords, I thank the noble Lords who have spoken. I begin by thanking in particular the noble Viscount, Lord Colville of Culross, for bringing to our consideration of the orders some remarkable direct experience and expertise. I mark his pointwhich is soundthat the codes can develop in the light of circumstances and experience, as I am sure they will in time as circumstances change. That is, in part, why it is important that they are not on the face of the Act: they are much more flexible and can change with circumstances.
I thank the noble Baroness, Lady Seccombe, for her acknowledgement that the letter from my honourable friend Bob Ainsworth was helpful in clarifying a misunderstanding and for her endorsement of the safeguards contained in the code.
I shall do my best to minimise the length of the letter that will need to be sent to the noble Lord, Lord Phillips of Sudbury, by dealing with a number of points, but undoubtedly I shall not have time to deal with them all to his satisfaction.
The noble Lord raised questions about resources. The chief surveillance commissioner clearly had some concerns about ensuring that he was adequately resourced to do his job. We think that those issues have been addressed and that the office of the surveillance commissioner is properly resourced to undertake those responsibilities. No doubt in the light of experience he will be monitoring the situation in the future, as will the Home Office.
Lord Phillips of Sudbury: My Lords, I asked how many individuals would be involvedhow many staff the commissioners will have in order to do the work. Will the Minister give that information in his letter?
With regard to the police, no doubt there are additional burdens, but they have received what is probably one of the more generous financial settlements for a while. Therefore, one hopes that they are not collapsing under the burden. I have not heard of any representations to that effect.
I was asked what would happen if the code was ignored. We do not believe that it will be. Public authorities are legally obliged by Section 71 of RIPA to follow the code, and the commissioner clearly has the responsibility to ensure that they do. Who checks that cancellations are carried out? The inspectors regularly inspect public authorities to ensure that these matters are complied with.
As regards public action against the records, the Data Protection Act applies to records held by public authorities. Individuals can make a subject access request to any public authority. However, in some circumstances the information will not have to be given if it would prejudice national security or the prevention or detection of crime.
In relation to paragraph 6.30, the provisions in Chapter 6 are to be found in Part III of the Police Act 1977. These codes replace the intrusive surveillance code of practice issued under the Police Act 1997.
I do not agree with the argument that records should be stored centrally. It seems to me that the records should be stored where the body is that is undertaking an investigation and where the surveillance commissioners can interrogate both the people who put them there and the documents at the same time, rather than moving to some data warehouse somewhere else.
There is no special protection for privileged information on lawyers or journalists or for medical information. On the other hand, it is clear that such information should not be accessed except in exceptional and compelling circumstances, as set out in paragraph 3.6 of the code.
With regard to whether information on vulnerable individuals should be used, we envisage such use only in limited circumstances. The code sets out further safeguards on the use of such sources above the requirements of the Act. The draft codes of practice on covert surveillance were consulted on, as signalled on the Home Office website. The public consultation period lasted from September to November 2000. The charge was that breach of the code gives no rise to noticeable or criminal liability. Covert surveillance per se is not criminal; Part 2 of RIPA makes surveillance lawful for human rights purposes. In other words, RIPA authorisation protects the public authority from civil claims under the Human Rights Act, the point made by the noble Viscount, Lord Colville.
The noble Lord, Lord Phillips, referred to the use of juveniles under 16 under paragraph 3.14. Article 3 of Statutory Instrument Number 2793the Regulation of Investigatory Powers (Juveniles) Order 2000states that juveniles under 16 may not be used to give information against their parents. I am sure that I have not dealt with all the points, but I shall write with fuller details.
The noble Lord said: My Lords, the events of September 11th clarified for everyone the danger faced from terrorists and the importance of utilising all possible proportionate means to counter it. Information collected by the enforcement agencies on passengers and goods carried into and out of the United Kingdom is regarded by the police as crucially important in that respect. The powers complement and will, over time, incrementally build on the security measures already in place at ports, such as powers to stop, question, search and detain individuals as well as physical preventive security measures such as body scanners.
The powers will allow the police to build an intelligence map to target and track terrorists to disrupt and prevent their activities in the UK and elsewhere. In a meeting with representatives from the air and sea carrier industry on 11th July, my right honourable friend the Home Secretary stated his belief in this power as an essential counter-terrorism tool and his commitment to it and to making it work in an agreed and proportionate manner.
At the time he made clear that we are aware of the pressures faced by the industry and stressed the importance of further consultation. We will ensure that the powers are introduced in an incremental way reflecting local circumstances. We have agreed that it would be useful for Ministers to meet the carriers again to discuss progress on the process of consultation and implementation.
Paragraph 17 of Schedule 7 to the Terrorism Act 2000 as amended by Section 119 of the Anti-terrorism, Crime and Security Act 2001 gives the power to an examining officer to make a written request to an air or sea carrier for information. Information requested could relate to passengers, crew, their vehicles and goods on all journeys to, from and within the United Kingdom. The request may relate to a particular ship or aircraft, or to all ships or aircraft of the carrier. It may relate to a single journey or span a period of time.
The key to this is targeted requests, not blanket "all passengers on all flights" demands for information. It is in the interests of the police to target requests around current intelligence patterns for maximum effect. Therefore, use of the powers must be proportionate and local circumstances must always be taken into consideration by the police.
Initial consultation took place between March and June 2002 when officials met a wide range of industry bodies including representatives of the air and sea passenger and freight carriers, freight forwarders, and maritime container companies. Additionally, officials visited ports and individual companies to observe the industry in operation and to obtain advice on possible business impact.
The range of meetings and visits coupled with the regular meetings with key representatives of the border agenciescontaining a range of expertise in ports policing, immigration and Customs and Excise mattersresulted in better understanding on both sides of the needs and capacity of each side and ultimately led to a substantial revision of the original list of information requirements.
A number of concerns were raised during the consultation process and these were brought to our direct attention at an important and useful meeting on 11th July. We recognise and acknowledge that they are matters of genuine concern to the industry. We made clear then and I wish to make clear now that the order is an enabler; how, and the extent to which, the power is applied will have some flexibility. Putting the flexibility in the order itself was explored but counsel advised against it. Nevertheless, the department is committed to making the consultation process have meaning and life and to work closely with industry.
The national security need was to have the enabler in place before the recess and to allow for consultation to continue over the summer and subsequently until we have a workable outcome. What is important is that the principle behind the power is recognised by both sides who have undertaken to continue the consultation process on implementation.
Therefore, although the power will come into force 30 days after the order is made, I assure the House that the legislation will not be implemented until the most thorough consultation has been carried out and agreement so far as possible on the best way forward has been reached with the carriers. In the interim we hope that both sides are able to think creatively about how best to approach the issue. Additionally, the police have made it clear that there will be no requirement on domestic carriers to undertake routine collection of the information requirements specified in the order.
In all cases, even when the power is in place, there will be a need to take local circumstances into account. The powers fall under the Terrorism Act 2000 and, as such, will be scrutinised by the independent reviewer of the Act, the noble Lord, Lord Carlile of Berriew. Officials are grateful for the continued active involvement and contribution of all sides. We wish to make the implementation proportionate.
To summarise, the Home Secretary has heard the concerns raised and intends that the consultation and the incremental phasing should be carried out in an intelligent and sensitive fashion. I commend the order to the House.
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