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House of Lords

Thursday, 13th November 2003.

The House met at eleven of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.

Prayers—Read by the Lord Bishop of Derby.

Royal Assent

The Chairman of Committees (Lord Brabazon of Tara): My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Acts:

Waste and Emissions Trading Act 2003,

Arms Control and Disarmament (Inspections) Act 2003,

European Union (Accessions) Act 2003,

Fire Services Act 2003.

Regulation of Investigatory Powers (Intrusive Surveillance) Order 2003

11.6 a.m.

The Attorney-General (Lord Goldsmith) rose to move, That the draft order laid before the House on 11th September be approved [28th Report from the Joint Committee].

The noble and learned Lord said: My Lords, I rise to move the orders on behalf of my noble friend. It may be for the convenience of the House if I first explain the procedure which, following discussion, we propose to adopt. Subject to the leave of the House, we shall have one debate covering all five orders. Formally, it will take place on the first order on the Order Paper—the Regulation of Investigatory Powers (Intrusive Surveillance) Order. I shall therefore move to approve the order and will speak to all five.

The noble Baroness, Lady Blatch, will then move her amendment and debate will take place on all five orders and all the amendments. I shall then close the debate, followed by the noble Baroness. The first Question to be put will be on the noble Baroness's amendment to decline to approve the intrusive surveillance order—unless, of course, she does not press it. I make it clear that although the debate will take place on all five orders and I am presently inclined to move all five orders when we reach them, I shall obviously want to consider the position in the light of any Divisions that may take place.

The order in which I now propose to speak to the orders—again, I hope that this will be for the convenience of the House—is, first to the intrusive surveillance order, then to the directed surveillance order, then to the communications data order and then, finally, to the two orders under the Anti-terrorism, Crime and Security Act 2001.

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I therefore turn first to the Regulation of Investigatory Powers (Intrusive Surveillance) Order 2003. The order before the House is made under Sections 41(3) and (4) of the Regulation of Investigatory Powers Act 2000 and relates to the Northern Ireland Office. It designates the Northern Ireland Office as a public authority that may apply to carry out intrusive surveillance under Part 2 of the 2000 Act, so that the Northern Ireland Prison Service has statutory cover for intrusive surveillance operations. The order also specifies that within the Northern Ireland Office only staff in the Northern Ireland Prison Service may apply to use the power.

I should say a little more about what this covers. Under Part 2 of the 2000 Act, intrusive surveillance is defined in Section 26(3) as any covert surveillance carried out in relation to residential premises or private vehicles. The definition of residential premises includes prison cells. There may be occasions when such surveillance by the Northern Ireland Prison Service is considered necessary—for example, in prison hostage situations. So the order is necessary.

On intrusive surveillance, Part 2 of the Act provides that the authorisations that will permit the Northern Ireland Prison Service to carry out such intrusive surveillance will be given personally by the Secretary of State, who will have to be satisfied that the action is necessary on one of the grounds listed in Section 32(3), and that it is proportionate to what is sought to be achieved by carrying out the surveillance. As with the rest of the Regulation of Investigatory Powers Act-authorised activity, those are important tests: the tests of necessity for one of the permitted reasons and proportionality.

In considering the circumstances of the individual case, the Secretary of State must also consider whether the information thought necessary to be obtained could reasonably be obtained by any other less intrusive measures. The oversight of the use of intrusive surveillance will fall to the Chief Surveillance Commissioner by virtue of Section 62(1)(a) of RIPA. Under Section 65(5)(d), the independent Investigatory Powers Tribunal is the appropriate forum to consider complaints about intrusive surveillance activity by the Northern Ireland Prison Service. It can award compensation for unlawful use of powers against an individual.

So I have identified the requirements—necessity and proportionality—authorisation by the Secretary of State; oversight by the chief surveillance commissioner; and complaints procedure with the independent Investigatory Powers Tribunal.

The Government's view is that the order represents an important move to ensure that public authorities carry out their activities in a strictly regulated manner, in a way consistent with the European Convention on Human Rights and Human Rights Act 1998. That is the purpose of the order. Throughout the debate noble Lords will hear me say on the orders that an important part, and the reason that the Government brought them forward, is to provide a strictly regulated manner for the exercise of the different powers that we will discuss. In the Government's view the order is

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compatible with the rights set out in the European Convention on Human Rights. On behalf of my noble friend, I commend the order to the House.

I shall now speak to the Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2003. It is made under Section 30(1),(3),(5) and (6) and Section 78(5) of the RIPA Act 2000. It designates bodies as "relevant public authorities" that may grant authorisation to carry out directed surveillance and/or use covert human intelligence sources under Part II of the 2000 Act.

Directed surveillance, also defined in Section 26(2) of the Act, is covert surveillance that is not intrusive. On the first order I talked about intrusive surveillance relating to residential or private premises, but this is covert surveillance that is not intrusive but undertaken for a specific investigation or operation likely to result in obtaining private information. An example might be the use of a CCTV camera in a public place to survey an activity or people.

A covert human intelligence source, also known as a CHIS in the world of law enforcement, is defined in Section 28(8). It includes those previously known as agents, informants or undercover officers. A person becomes a covert human intelligence source if he establishes or maintains a personal or other relationship with someone for the covert purpose of obtaining information or to disclose information covertly obtained by the use of such relationships.

Part II of the 2000 Act provides for the first time a statutory framework compliant with the European Convention on Human Rights for the use of covert surveillance and covert human intelligence sources. Neither are new activities for law enforcement agents, but the Act provides a statutory framework compliant with the European Convention and strict requirements for the exercise of the powers. If the order is approved, as I hope it will be, it will ensure that the public authorities listed have their surveillance activities tightly regulated in such a framework. Let me be clear: the order is not about giving those public authorities any powers either to intercept the content of communications or to carry out intrusive surveillance. The only intrusive surveillance about which the debate is concerned is that of the first order on the Northern Ireland Prison Service.

The order will also repeal the previous order, Statutory Instrument 2000 No. 2417, the Regulation of Investigatory Powers (Prescription of Offices, Ranks and Positions) Order, which designated authorising officers for the public authorities listed in Schedule 1 to the Act. That will allow us to provide for the House and the public clarity in a single order about which authorising officers in what public authorities can authorise that activity under Part II. It restricts the power to authorise only to those people. That is why the order includes existing public authorities already listed in Schedule 1 to the Act as well as additional public authorities.

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Not only does the order restrict who can authorise; for the first time, it also restricts the grounds on which authorising officers can grant authorisation. That ensures consistency with the Retention of Communications Data Order before the House today, to which I shall speak shortly. I wish to make it absolutely clear that we are not multiplying the number of agencies and public authorities included within the framework of the Act. We are adding only 12 public authorities to Schedule 1 to the Act and removing health authorities from the list of bodies that can authorise directed surveillance.

I recognise how complicated the order may appear, but perhaps I might explain how it works in practice. Article 2 adds to the list of public authorities contained in Part I of Schedule 1 to the Act, which are authorised, subject to the requirements, to carry out directed surveillance and to use covert human intelligence sources. It includes the United Kingdom Atomic Energy Authority Constabulary, the Northern Ireland Office, fire authorities, the Charity Commission, the Gaming Board for Great Britain, the Office of Fair Trading, the Office of the Police Ombudsman for Northern Ireland and the Postal Services Commission.

Article 2 of the order also adds four public authorities, but only for the purpose of carrying out directed surveillance, not covert human intelligence. They are: local health boards in Wales, Her Majesty's Chief Inspector of Schools in England, the Information Commissioner and the Royal Parks Constabulary. Those are the authorities.

Column 2 of the schedule identifies the level of officer who may authorise the relevant public authorities. It covers both the normal situation and urgent cases, where there is a need to make special provision. In urgent cases the person listed may authorise where necessary. However, noble Lords will see that column 4 limits the grounds on which particular authorising officers can authorise surveillance, by reference to the list in Sections 28(3) and 29(3) of the 2000 Act. I remind Noble Lords that these powers—directed surveillance and covert human intelligence sources—are covered in Sections 28(3) and 29(3), but the lists are exactly the same in other provisions. Paragraphs (a) to (g) of subsection (3) list the permitted grounds for an authorisation, provided that it is necessary and proportionate and,

    "(a) in the interests of national security;

    (b) for the purpose of preventing or detecting crime or of preventing disorder;

    (c) in the interests of the economic well-being of the United Kingdom;

    (d) in the interests of public safety;

    (e) for the purpose of protecting public health;

    (f) for the purpose of assessing or collecting",

any taxes. Finally, paragraph (g) permits the adding of another purpose, but no addition is being made.

That list of permitted grounds appears in the 2000 Act. They entirely reflect the permitted grounds under the European Convention on Human Rights. Privacy is not an absolute right under the European convention, as noble Lords well know, and the permitted exceptions are in the list. An authorisation would have to be necessary on one of those grounds.

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Column 4 identifies which grounds are relevant to the particular agency. Noble Lords will also see that in relation to other orders. The Government want to ensure that the authorisation for particular bodies is appropriate and necessary for that body. We have therefore required the bodies to demonstrate what they need, and have included that in the provision. For example, the Charity Commission is listed in column 1 by virtue of its addition to Schedule 1 by Article 2 of this order. The rank of senior investigations manager has been designated as the appropriate rank of authorising officer to authorise either directed surveillance or covert human intelligence authorisations. If there is an urgent case, an investigations manager in the Charity Commission is prescribed to authorise either. However, in both routine and urgent cases, only the designated authorising officers can grant authorisations and they can do so only if such authorisations are both necessary and proportionate for the purpose in paragraph (b):

    "for the purpose of preventing or detecting crime or of preventing disorder".

It may also help if I give examples of the type of activity carried out by some of the public authorities that we seek to add to the list by order. I will take the example of the Charity Commission, because noble Lords may wonder why it has been included. It is the statutory authority for the regulation of charities in England and Wales. It is a non-governmental ministerial department, which is accountable to the Home Office for its efficiency and to the courts for its decisions. However, within its general function of promoting the effective use of charitable resources, it has particular responsibility to investigate criminal offences under the Charities Act 1993.

Under Section 8 of that Act, the Charities Commission can institute a formal inquiry if it suspects that abuse has occurred. The Act therefore gives the commission a range of information-gathering and remedial powers, so such a body is already within a transparent framework. The commission may wish to use techniques such as directed surveillance and it may need to use people to provide intelligence or work under cover—to use that shorthand—to prevent or detect crime. I am afraid to say that crime such as fraudulent charity fundraising or the misappropriation of charity funds does happen, as noble Lords know. Having the additional powers in this regulated way would enhance the commission's regulatory role in a way that is strictly compliant with the ECHR and strictly regulated.

The United Kingdom Atomic Energy Authority Constabulary is responsible for the policing and protection of special materials on designated civil nuclear sites in England and Scotland and when nuclear materials are being transported. The constabulary requires these powers as part of a package of measures to protect the civil nuclear industry from threats of terrorism, sabotage, proliferation and other criminal acts. I am sure that noble Lords would not hesitate to agree that to protect us all against such threats is an important objective.

Another example may raise questions in noble Lords' minds—that of Her Majesty's Inspectorate of Schools. Ofsted is the non-ministerial department

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headed by Her Majesty's Chief Inspectorate of Schools for England. It is not an agency of another department and a person may be appointed chief inspector by Order in Council. Its principal task is the management of school inspection, originally defined by the Education (Schools) Act 1992. As noble Lords know, its role has expanded over successive years and now includes inspection of: teacher training courses; education in the private, voluntary and independent nursery sector; independent schools; LEAs; and sixth form and further education colleges. Ofsted does not need to carry out directed surveillance activities in connection with those functions.

Since 2001, however, the inspectorate has also been responsible for the regulation and inspection of child minding and day care in England. That responsibility was transferred from local authorities as a result of amendments to the Children Act 1989. Ofsted may need to undertake surveillance activities in connection with powers as the registration authority for child minders and day care providers. It has the responsibility for taking enforcement action when people are child minding or providing day care without being registered and when registered people contravene the terms of their registration.

I will put flesh on those bones to give a more practical example. The two most frequent uses of regulated surveillance—which is not intrusive or within the house—is the investigation of whether a person is acting as a child minder without being registered or whether registered child minders are caring for more children than they are allowed. I need not stress the importance of a properly regulated regime in relation to child minders, because it has already been the subject of comment in this House. There have been some worrying and tragic incidents. To achieve a properly regulated regime it may be necessary to carry out surveillance on people's homes to investigate whether children are being looked after illegally or record the number of children going in and out. Again, I emphasise that this is not intrusive surveillance, but surveillance from a public place. In either case, the person concerned could be committing a criminal offence. Even more importantly, the safety and health of the children being looked after may be at risk.

I would be happy to deal with how such powers may be used by other bodies. My speaking notes give the examples of the Office of Fair Trading and the Gaming Board for Great Britain, but we have quite a lot to cover. I hope that what I have said is sufficient to indicate, first, why the Government believe that it is important to regulate; and, secondly, the strength of the conditions imposed—that is, necessity, the level of authorisation, the purpose for the particular body, and the need for such action to be proportionate. I trust that I have given enough examples to enable noble Lords to recognise why directed surveillance or covert human intelligence sources may be appropriate for the important functions that these bodies carry out.

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