Surveillance: Citizens and the State - Constitution Committee Contents

Examination of Witnesses (Questions 1020-1039)

Mr Vernon Coaker, Mr Tim Hayward and Mr Stephen Webb

19 NOVEMBER 2008

  Q1020  Lord Lyell of Markyate: What you are saying is very helpful but, pinning it down, there really is no reason why local authorities should have the right to use these powers at all unless they have some function in serious or organised crime or in relation to terrorism. There is no reason why they should have the right, for example, as we have been saying, in terms of dustbins, dog fouling, school catchment areas. Would you agree with that?

  Mr Coaker: In respect of dog fouling and bins I would have to agree with that, and that is the sort of area we need to look at. The reason I slightly hesitate about bins is that I could make an example up where fly tipping was a serious crime and so I do not want to get into all rubbish being something local authorities should not look into. You could make up an example of big tipper lorries going somewhere and dumping waste. I know that is not what you mean, my Lord, but do you see the point I am making? However, I do think we have to get away from this use in those sorts of ways that Lord Morris and Lord Peston have raised so that we can keep support for the other matters.

  Q1021  Lord Lyell of Markyate: I agree; you have to stick to serious crime. It may be something which has to have at least a two-year prison sentence available for it—that may not be the exact test but something like that—but these other more administrative things like dustbins as opposed to serious fly tipping are in a different league. Your letter of the 21st October is a helpful letter, but whilst at the start it deals with serious and organised crime and terrorism, when you get to the third to last paragraph it says, "to tackle all forms of crime", which would include messing about with a dustbin. I think that needs to be taken on board by the Government and changed.

  Mr Coaker: In retrospect "all forms of crime" I might have qualified if I were writing the letter again, but hopefully from the evidence I have given the Committee this morning the understanding is that the other ways it has been used we would regard as inappropriate and we need to ensure that it is used appropriately and we are working with DCLG on that. As I say, I have already talked to my colleague, John Healey, about how we take that forward.

  Lord Lyell of Markyate: The way it should be taken forward is that the power should be restricted. It should not be a question of individual judgment by a local authority official as to whether it is necessary and proportionate. That is not good enough.

  Q1022  Lord Morris of Aberavon: If I understood your North Yorkshire example correctly, there is a sound moral case for North Yorkshire doing what they have done, but surely the existing powers under the law are more than adequate. I have been involved—involved professionally, if I may say so—in cases where travellers have got gullible old people to pay £5,000 for repairing roofs and the law of the land caters for that already. There have been discussions, I understand, between Sir Simon Milton and the Surveillance Commission about the misuse of local authority powers in trivial matters. What has come out of them?

  Mr Coaker: What has come out of them is the point that I have just made, that certainly myself and DCLG are now talking about how we take all of this forward and turn some of the words that we have been saying about dealing with this into action. I know Sir Simon wrote to local authorities and said to them that when they used these powers they had to make sure they were used in a necessary and proportionate way and reminded them that that is in the guidance and that is what they should be doing. Going back to the roofers very quickly, the point I was trying to make was that the use of the powers available under RIPA enabled the local authority to identify them and collect the evidence through communications data which then enabled them to be prosecuted.

  Q1023  Viscount Bledisloe: Minister, as I understand it, you are now saying that the local authorities had the power to collect this data without RIPA but that it was inconvenient that they had varying powers in different directions. Your letter says that Charles Clarke confirmed that there was no intention to extend the provisions in RIPA to enable local authorities to have access to communications data. I confess I read that as meaning that they did not have that access and were not to get it. Which are you saying?

  Mr Coaker: What I am saying is that, obviously, when the RIPA legislation was going through there was no intention to give them powers under RIPA but what became apparent was that they were already going to internet service providers to ask for communications data on a limited basis, but nonetheless on the basis of powers that existed under other Acts like the Data Protection Act or production orders under PACE. Following the passage of RIPA, where there were people going to the internet service providers asking for communications data under RIPA, what we thought, in the light of how it was working, was would it not be better to bring everybody under one piece of legislation so that the internet service providers knew in what context they were being asked for that information and also because we thought that because we have tried to make RIPA, difficult though it is, human rights compliant, that would be beneficial to that. That was the judgment that was made after that. We went out to public consultation and then we brought it through Parliament.

  Q1024  Lord Morris of Aberavon: Are you saying that when Charles Clarke gave his confirmation he did not realise that there were these powers under the other Acts or are you saying that his answer was disingenuous?

  Mr Coaker: No, it certainly was not disingenuous.

  Q1025  Lord Morris of Aberavon: So he did not realise they had the powers under these other Acts but then that information came up later after RIPA had been passed?

  Mr Coaker: Certainly I sometimes make decisions and try to assure people about certain things and then a year or two later, despite the assurances, it has not quite worked in the way that I expected it to. I think the appropriate thing then is to make a judgment about saying how do we address this, consulting people, explaining what the issue is that has arisen, and then bring it through Parliament and say, "The belief of the Government following public consultation, following the way it has worked, is that there is the need for us to adapt and change and amend the legislation accordingly".

  Q1026  Baroness Quin: As Lord Peston said, you gave an opening statement which was strong in terms of referring to human rights and the right to privacy and the need to be proportionate. Do you feel that someone is taking overall responsibility in government for ensuring that these principles are adhered to, and how within government, given the challenges of changing technology and the ease now with which data security can be breached with lapses of data security that we have seen, and also in a situation where government outsources data collection, sometimes not even within the UK but abroad, are these principles going to be adhered to?

  Mr Coaker: The overriding principle, of course, is that now because of the Human Rights Act incorporated into British law there has to be a statement in front of every piece of legislation about the legislation being human rights compliant. I think that is an important statement of principle. In terms of the responsibility for necessity and proportionality in this area of work, that will ultimately be my responsibility and I take this responsibility extremely seriously just a few weeks into the post. We meet regularly with other departments in terms of security, in terms of many of the issues that we have here, and alongside that there are the responsibilities of all the various commissioners that have been put in place for them to ensure as well that all of these processes are working properly. In fairness to your question, obviously there have been some issues with regard to data retention, and I think it is extremely important for us to continue to build trust so that when the Government holds information, when the Government has data, it ensures that that data is protected and secure. For example, the Cabinet Secretary has been working to try to bring forward new procedures with respect to that so that each individual department now looks at the way it deals with information, the way it holds information and the way it treats information. That is starting to give us a much more powerful message about the way we collect and maintain the information and data that we have.

  Q1027  Baroness Quin: This also applies to outsourcing, does it?

  Mr Coaker: It certainly does and in terms of memoranda of understanding and the work of the commissioners we are trying to ensure that that data and the sharing of that data are appropriate and proportionate as well.

  Q1028  Lord Morris of Aberavon: Minister, am I right in thinking, and correct me, please, if I am wrong, that nothing much has flowed from the talks with Sir Simon Milton on the issue of triviality and the misuse of powers? Have you any intention of doing anything practical like a code of conduct or guidance to local authorities or guidance in particular as to how they exercise their judgment in proportionality, which is not easy?

  Mr Coaker: Let me say this, my Lord Chairman. I think it might be a good idea if I offered to come back to this Committee in the summer maybe to see what progress we have made with respect to all of this if that is helpful to the Committee. It is an extremely important area of work and I want to ensure that we have pace and momentum in taking all of this forward. If that is helpful to your Committee, my Lord Chairman, and agreeable to yourself I just leave that on the table for the Committee to consider.

  Q1029  Chairman: Thank you very much, Minister.

  Mr Coaker: Just on the point that Lord Morris has made, there has been some progress with respect to all this but we are now at a position with DCLG where we need to look at the codes of conduct and see how we take them forward, as I was trying to intimate, having had discussions, to ensure that we avoid some of the issues that have arisen in the past to maintain the confidence that Lord Peston was talking about in the more general use of these powers to prevent and tackle and detect serious crime and indeed terrorism.

  Q1030  Lord Norton of Louth: I have two questions deriving from what you have already covered, first on the RIPA point. The criticism made is that it has been used for purposes that it was not intended to be used for, but, as I understand your point, nonetheless it may be used in a way where the effects are beneficial, and there was an example you gave. Would that possibly then be an argument for having separate legislation where something is not covered by extant legislation in order to maintain the integrity of RIPA for the purposes that it was intended for? If you had separate legislation it would allow it to be more tightly drawn to cover the sorts of examples you are talking about.

  Mr Coaker: You could do that but the really important point is that I think we can do it under RIPA if we get this right. We have got primary legislation there, we have got codes of conduct which flow from that, and I think the task for us is to ensure that what we have got works rather than saying that we will have another piece of primary legislation. That would be my approach and I do not think that it is impossible for us to go forward in that way. As Lord Morris was saying, there has been a lot of discussion about this. We are now at a point where we can look forward to taking some action with our colleagues across government and, as I say, particularly with DCLG.

  Q1031  Lord Norton of Louth: In a way that leads to the next question which you have already been asked about, guidance in trying to achieve that distinction so that it does not lose public support for the purposes for which it was intended. My second question follows on from Baroness Quin's about what happens within government. You mentioned that you have prime responsibility and co-ordinate and have meetings. Can I push you a bit further on that in terms of how proactive that role is, how it is best being responded to, or is there guidance given within government to ensure that the principles you have detailed are applied consistently through government?

  Mr Coaker: I think up till now it has worked fairly well in the sense that I talked about. As the work develops as all of this agenda moves forward and we try and tackle some of the issues that we will no doubt come on to later, my Lord Chairman, there may be a need for us to look at how we more effectively co-ordinate action across government. Sometimes you see this as criticism. I just think it is an evolutionary process. I think if you looked back five years you might say, "What we should have done was so-and-so", so as the process evolves, as legislation evolves, as technology changes, so the response of government should be, "Have we got all the appropriate systems in place?" Officials meet regularly across government. We meet, particularly with respect to security, very regularly as ministers. As I have said, I meet with DCLG colleagues. There is sometimes a need to consider whether we need to formalise that more than we do at present.

  Q1032  Lord Rodgers of Quarry Bank: With respect, would you say something a little more clear about the process of government? You talk about one minister to another. Is there a committee? Is there a way in which all legislation is examined by a minister of state of your department? How does it actually work? For example, it is not a direct comparison in any way at all but, as we all know, in government any legislation, any proposals, are always looked at by the Treasury; that is a well established convention or approach, but is there now some convention of that kind—and again, with great respect, ministers of state have very important roles nowadays but in the end it is the secretary of state, whoever it might be, who carries most weight—that it is carried from the head of the department to all members of the Cabinet? It is the process I am interested in.

  Mr Coaker: There are, as Lord Rodgers will know, a number of Cabinet committees and all of these cross-government bodies that meet. What I was trying to say in answer to Lord Norton's point is that I think there is a need for us to look at how we more effectively co-ordinate at a ministerial level—

  Q1033  Lord Rodgers of Quarry Bank: How is it now? You say it should be different but how is it now?

  Mr Coaker: As it stands at the moment I talk to colleagues at DCLG with respect to these matters in the way that I have indicated in terms of local authority powers, in terms of how the legislation works. If we talk about security, there is a regular meeting each week with officials and ministers from across government to discuss all of that with respect to terrorist related offences. As I say, with the increasing importance of all of this area of work—the intercept modernisation programme that is taking place, some of the debate and discussion around RIPA, all of these other areas—there is a need for us to make that process more formal than it is at the present time, and I think there will then frankly be a more satisfactory answer to the point that you are making about the need for us to effectively co-ordinate across government. As I say, that is where we are at the moment and where we need to get to and we will.

  Mr Webb: Can I just add something on the legislation? When we are talking about legislation we need a secretary of state's certificate of compatibility with the Human Rights Act and that is obviously something that will need to be agreed with the law officers, so there is a process there. When it comes to individual actions, again, the Human Rights Act enables people to challenge any public authority if they believe their actions are not compatible with the principles of the Act, so there are a number of processes which are already set out in law.

  Q1034  Lord Smith of Clifton: Minister, we have talked a lot about trust and we all agree on the need for maintaining public trust. Does the Home Office undertake opinion polling from time to time to see what public attitudes are towards RIPA and surveillance generally? How do you make yourself aware of what the public trust is?

  Mr Coaker: We have not but we are going to do some polling with respect to the popularity of all of this work, so that is the factual statement. If the supplementary to that is do I think surveillance and data collection are something which are generally supported, I think that providing it is proportionate people see it as necessary. It is a bit circular but I think it is the truth that people do support the use of surveillance and data collection techniques as long as they have that trust and it is proportionate and the work that is done is necessary, which goes back to the earlier discussion.

  Q1035  Lord Smith of Clifton: There is a difference, of course, between surveillance on the one hand and data gathering on the other.

  Mr Coaker: Absolutely.

  Q1036  Lord Smith of Clifton: One would have to distinguish what the public's mind was between these two things.

  Mr Coaker: If we look at the communications data point that we made, obviously, the threshold for agreement to that is much lower than when you start getting into the more covert, intrusive surveillance where the threshold is completely different. I think people generally understand that the need for intercept and some of the covert surveillance, some of the more intrusive powers, can only be done at a very high threshold with secretary of state approval. I think people generally understand that because they know that is associated with terrorism and very serious crime. With communications data there obviously is a lower threshold for having agreement to do that, and stop me if I get boring with this, but I do think that people generally support the use, even at a local authority level, of techniques to get communications data providing we do not have the sorts of problems that we have seen where people have seen it used for dog fouling. If it is used for the example that I gave of the roofer, and I do not want to repeat that here or go through some of the other examples that I have, I think people find that acceptable.

  Q1037  Lord Smith of Clifton: Might I ask, Minister, when you are proposing to do this poll?

  Mr Coaker: In the near future, as I understand it.

  Q1038  Lord Smith of Clifton: "The near future" is what? Within the next six months?

  Mr Coaker: If you have me back you will be able to say, "Have you done that, Minister?".

  Q1039  Lord Smith of Clifton: The real problem that the Government have, and I appreciate this, is that when things are undertaken reasons of state are always prayed in aid, which is always a very dodgy ground because, as you said in your opening statement, where do you draw the line on this? That is why I would urge you to do opinion polling on a fairly regular basis, frankly, to see whether you are taking the public with you or not.

  Mr Coaker: Can I just say, Lord Smith, that I have given a clear undertaking that we will do some work with respect to this to find out where we are or are not with the public, and in due course if you do not have me back I will write to you anyway.

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