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
itthat may not be the exact test but something like thatbut
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
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 involvedinvolved professionally, if I may say
soin 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
Q1029 Chairman: Thank you very much,
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
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 kindand 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
weightthat it is carried from the head of the department
to all members of the Cabinet? It is the process I am interested
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 workthe intercept modernisation
programme that is taking place, some of the debate and discussion
around RIPA, all of these other areasthere 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
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
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
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.