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2.59 pm

Asked By Baroness Williams of Crosby

Lord Brett: My Lords, the United Kingdom continues to be extremely concerned by the current restrictions imposed on the Gaza border by the Israeli authorities, and regularly urges the Israeli Government to ease access, including for construction materials. Our top

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priorities in Gaza are to ensure that humanitarian aid reaches those who need it, and that homes, schools, hospitals and other essential buildings are rebuilt. We shall continue to raise these issues with the Israeli Government at the highest level.

Baroness Williams of Crosby: I thank the Minister for his Answer. Are the Government aware that more than 6,000 houses have been destroyed or very badly damaged since Operation Cast Lead, which led to the invasion of Gaza by Israel? Is he aware that those houses have been left unfinished for more than two years, meaning that thousands of Gazan families have nowhere to live? Is he also aware that raw sewage is now being poured into the Mediterranean for lack of the necessary components to repair the sewerage system, and that there is consequently an epidemic of diarrhoeal infection and anaemia among children in Gaza, who number half the population? In conclusion, do the Government believe that such a devastating blockade can go on for much longer, and what steps do they propose to take to reinforce the advice that they are trying to give, which seems singularly ineffective?

Lord Brett: My Lords, I confirm the very serious situation that the noble Baroness refers to. My figures tell me that 3,540 homes need reconstruction, 20,000 people have been displaced, 90 to 95 per cent of water is unfit for human consumption and 50 to 80 million litres of sewage flow into the Mediterranean each day. We are doing all we can to assist the population of Gaza. We gave £26.8 million in humanitarian aid and £21 million has been distributed to charities operating in Gaza. It is a long list, and as I am restricted to short answers I will not go through it all. Suffice to say that a major problem remains. We have a substantial sum of money that we are unable to spend because we need to get construction materials into Gaza. We continue to urge the Israeli Government-pleased as we are that there has been a slight improvement and that there has been some give-that we need a lot more give and we need it now.

Lord Campbell-Savours: My Lords, why do we not just break the blockade?

Lord Brett: This is a diplomatic question-using diplomacy in its widest sense-put in a fairly undiplomatic way. The answer is that there is only one long-term solution: the two-state solution based on the 1967 boundaries. This means bringing people to the negotiating table. The truth is that the wheels of diplomacy grind slowly, but we need the traction and momentum to get to the negotiating table. Without that, there can be no solution. Difficult though it is, we know from our own experience that perseverance and continuing principled stands do in the end achieve results.

Lord Hylton: Is the noble Lord aware that the sewage is threatening not only the sea but also the land, by polluting groundwater? Will the Government take much more effective steps than they have until now to ensure that reinforcing steel and cement get through to Gaza, and safely into the hands of the UN agency there?

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Lord Brett: I entirely agree with the noble Lord's sentiments and with the points that he makes. They are uppermost in the minds of the Government, and of government agencies operating in the area, as well as of the international bodies. We continue to do all we can to persuade the Israeli Government that it is in their interests, as well as the interests of the people of Gaza and those of the greater country of Israel, to ensure that the earliest and most practical steps are taken. We will continue those endeavours.

Lord Howell of Guildford: Perhaps I may return to the noble Baroness's question, and her list of the appalling damage that has been caused in Gaza. Is it not the position that 240 out of the 640 schools in the Gaza Strip have been damaged, and 18 have been flattened? Would it not be worth pointing out to the Israeli authorities that, if they are concerned with Israel's security, as they properly should be, and if they are nevertheless worried that some materials may go towards building rocket stations rather than restoring civilian facilities, it is directly in the interests of the people of Israel, and of their future citizens' security, that the schools should be replaced and that young children in the Gaza Strip should go back into them as soon as possible?

Lord Brett: The noble Lord makes an important point, which I am sure has been reiterated to the Government of Israel. On 28 December, the UK pledged an additional £5 million to pay the salaries of 500 UNRWA teachers in Gaza, so that refugee children can continue to receive a high-quality education. This morning, for my benefit, I asked for the chronology of meetings, teleconferences and so on between our Government at ministerial level and both the Palestine Authority and the Government of Israel. In a period of five months, there have been 25 contacts at ministerial level-five of them at prime ministerial level. Whatever else we can be accused of, we cannot be accused of not committing all our endeavours to persuade all parties in that area of conflict to the negotiating table.

Lord Wallace of Saltaire: As Gaza has a southern border as well as northern and eastern borders, what representations have we been making to the Egyptian authorities who are complicit in this blockade?

Lord Brett: That is slightly unfair. I understand that the Egyptians have been facilitating and hoping for greater access to Gaza. I am not aware of the immediate representations that we have made in that quarter, but I shall seek out that information and let the noble Lord know.

Lord Anderson of Swansea: My Lords, the Egyptians are building a very deep wall between themselves and Gaza, but it is right for Her Majesty's Government to make representations to the Government of Israel. Does my noble friend at least understand the concerns of Israel that the materials supplied are not diverted for military use? How do we ensure that guarantees are given that such material is properly screened so that is not used against Israel itself?

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Lord Brett: My Lords, we understand Israeli fears in that direction but it is not beyond the wit of man-certainly not beyond the wit of the United Nations-with good will on all sides to come up with systems to provide that reassurance for the Israeli authorities, while starting to put an end to the misery of people in Gaza.

Baroness Symons of Vernham Dean: My Lords, my noble friend said that this was a diplomatic question. Surely it is a question of humanitarian relief. Does my noble friend think that our friends in the United States are bringing sufficient pressure to bear on our friends in Israel to try to address this difficult question with the urgency that it deserves?

Lord Brett: I am sure that President Obama's Administration are doing all they can to persuade the Israeli Government of the wisdom of the suggestions and solutions put forward by the international community. Senator Mitchell made a statement in that regard as recently as last week. However much we in this Chamber wish and desire to see a solution, and however much we harangue and plead, the answer lies within the borders and the people of that country. The United Kingdom is doing everything possible in terms of humanitarian aid but that is not the problem so much as the political will.

Electronic Commerce Directive (Hatred against Persons on Religious Grounds or the Grounds of Sexual Orientation) Regulations 2010

Data Protection (Monetary Penalties) Order 2010

Personal Accounts Delivery Authority Winding Up Order 2010

National Employment Savings Trust Order 2010

Occupational and Personal Pension Schemes (Automatic Enrolment) Regulations 2010

European Union (Definition of Treaties) (Stabilisation and Association Agreement) (Bosnia and Herzegovina) Order 2010

Health Protection (Local Authority Powers) Regulations 2010

Health Protection (Part 2A Orders) Regulations 2010

23 Feb 2010 : Column 927

Health and Social Care Act 2008 (Consequential Amendments) Order 2010

Motions to Refer to Grand Committee

3.07 pm

Moved By Baroness Royall of Blaisdon

Motions agreed.

Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2010

Copy of the Order
5th Report from the JCSI
6th Report from the MC

Motion to Approve

3.08 pm

Moved By Lord Davidson of Glen Clova

The Advocate-General for Scotland (Lord Davidson of Glen Clova): My Lords, this is one of five affirmative orders made under the Regulation of Investigatory Powers Act 2000 to which I shall be speaking this afternoon. The others-fascinatingly perhaps-are the Regulation of Investigatory Powers (Covert Surveillance and Property Interference: Code of Practice) Order 2010; the Regulation of Investigatory Powers (Extension of Authorisation Provisions: Legal Consultations) Order 2010; the Regulation of Investigatory Powers (Communications Data) Order 2010; and the Regulation of Investigatory Powers (Covert Human Intelligence Sources: Code of Practice) Order 2010.

I shall also speak to the Motion in the name of the noble Baroness, Lady Hamwee, on a negative resolution order: the Regulation of Investigatory Powers (Covert Human Intelligence Sources: Matters Subject to Legal Privilege) Order 2010. Incidentally, to avoid confusion, I should say that the Motion on the Order Paper refers to the earlier order, SI 2009/3404, which was laid down in December 2009 but was subsequently withdrawn. The order that is now before the House is SI 2010/123, which was made in substitution for the earlier order.

It makes sense to consider these orders together. Together, they implement the outcome of a public consultation on which public authorities should be included for certain statutory techniques and why they should be included. They provide extra safeguards and guidance, particularly for local authorities. They also fulfil our obligations following a number of independent, high-profile findings. It is important to remember the context of these orders. Investigation, including covert investigation and the use of communications data, is the cornerstone of the way in which many public authorities discharge their statutory responsibilities, whether preventing a terrorist atrocity,

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dismantling a drugs ring, locating a person lost at sea, prosecuting a rogue trader or tracing a company dumping hazardous waste.

Public authorities need a variety of investigatory tools to do the sometimes very demanding jobs that the public and Parliament expect of them. Sometimes the only way that they can effectively discharge their responsibilities is to act covertly in a way that is likely to obtain private information. This need applies not just to the police and intelligence agencies but to virtually all public authorities that Parliament has made responsible for carrying out investigations.

In these circumstances, there needs to be a legal framework for ensuring that these techniques are used compatibly with our right to privacy. It is crucial that this vehicle allows public authorities to do their jobs while protecting the wider freedoms that we all cherish. The legislation which provides this framework is the Regulation of Investigatory Powers Act 2000-for convenience's sake, referred to as RIPA henceforth. RIPA did not create covert investigatory techniques-that point is often, perhaps, lost sight of-rather, it regulated them. Before RIPA, public authorities' use of covert surveillance was largely unregulated. Now, the area is subject to careful regulation, including extensive safeguards.

It is of course necessary to keep RIPA under review so that it remains up to date and fit for purpose. The orders before us today are an essential part of that process. They do a number of things. First, they consolidate previous orders setting out who, in which public authority, may authorise what and for what purpose, updating that as necessary. This follows an extensive review of all the public authorities in the RIPA framework, and a three-month public consultation in 2009.

Secondly, they strengthen the overview of local authority use of RIPA. In addition to the consolidating orders which raise the authorising rank to at least director level, they require a member of the corporate leadership team-that is, a chief executive or a deputy chief executive-to be responsible for the standards of the authorising officers. They require that local councillors have an oversight role in planning and reviewing the way in which councils use RIPA.

Thirdly, they make the tests of necessity and proportionality clearer. Revised statutory codes of practice require public authorities authorising covert techniques under RIPA to consider the seriousness of the offence, in addition to the prior requirement that they weigh up the benefits to the investigation. The codes give additional guidance on what constitutes private information. They provide illustrative examples for the RIPA authorising officer to consider, and make it clear that it is not appropriate to use covert techniques under RIPA to investigate, for example, dog-fouling offences or people who put their bins out a day early.

Fourthly, the codes also reduce bureaucracy for the police and other public authorities. They provide greater clarity on when authorisations are not needed, thereby cutting the number of unnecessary RIPA authorisations. They facilitate the work of police collaborative units in line with the arrangements in the Policing and Crime Act 2009. This means that where chief officers

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have made a collaboration agreement, joint police units will need only one RIPA authorisation, rather than one from each chief officer in each force represented in the unit. This is in line with a recommendation in Sir Ronnie Flanagan's Review of Policing.

3.15 pm

Fifthly, the codes and the related order on legal consultations strengthen the arrangements for the authorisation of covert surveillance in specific instances. For example, constituents' communications with MPs on constituency business will be treated in the same way as other confidential material and will therefore be subject to a higher rank of authorising officer. This follows the report of Sir Christopher Rose into the electronic eavesdropping of conversations between Mr Babar Ahmad and Mr Sadiq Khan MP.

The directed surveillance of legally privileged communications is treated as "intrusive" surveillance where the order applies. This requires the surveillance to be subject to prior approval by either a surveillance commissioner or the Secretary of State. This is in line with a recent House of Lords judgment and will enable the law enforcement and intelligence agencies to carry out covert surveillance of legal consultations in the relevant circumstances, but only with the approval of either the Chief Surveillance Commissioner when it is an issue of law enforcement or the Secretary of State when it is an issue for the intelligence agencies, and then only in the most exceptional circumstances as set out in the code.

Finally, I shall deal with the negative resolution order, which relates to the Regulation of Investigatory Powers (Covert Human Intelligence Sources: Matters Subject to Legal Privilege) Order 2010. This order, like the one for covert surveillance, responds to the Lords' appeal judgment, to which I referred earlier, in the case of McE in 2009 and puts in place an enhanced regime of prior approval for cases where an authorisation is granted for a covert human intelligence source to obtain legally privileged material. The judgment did not expressly mention covert human intelligence sources and therefore, on one view, the negative order goes narrowly further than the ratio of the judgment in McE. However, we believe that RIPA should take a consistent approach to this matter. If it is right to make subject to special considerations covert surveillance in places where legally privileged material is obtained-for example, by a hidden microphone-then it is right to extend the same considerations to instances where human sources are tasked with obtaining the same information.

The practical effect of the negative order is to limit-to national security, serious crime and the economic well-being of the UK-the purposes for which covert human intelligence sources can be authorised under RIPA to obtain legally privileged material. It would also make such authorisation dependent on approval in every case by either a surveillance commissioner in the case of law enforcement or the Secretary of State in relation to the intelligence agencies. We believe that it is right to strengthen RIPA by raising the bar for this type of investigation. Without the extra safeguards provided by the order, any public authority listed

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under RIPA for authorising covert human intelligence sources may authorise their deployment for any of the purposes they are listed for and without approval from an independent surveillance commissioner or Secretary of State, which may be thought undesirable.

I therefore beg to move the Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order, and I commend to your Lordships the various regulation of investigatory powers orders to which I have also spoken.

Baroness Neville-Jones: My Lords, I thank the Minister for explaining the five orders. These orders follow a Home Office consultation that, among other things, was designed to assist the Government in reviewing the public authorities able to authorise the use of communications data, covert surveillance and covert human intelligence sources under RIPA and to allow the Government to provide better guidance on the use of powers available under the Act. As the Joint Committee on Statutory Instruments noted, the draft orders relating to directed surveillance and covert human intelligence sources and to communications data make substantive changes to the RIPA framework. These two areas and the related codes of practice will, therefore, be the focus of my response.

We on these Benches will not oppose the orders, as they go some way towards what we want to achieve, which is a reduction in the number of public bodies able to authorise the use of surveillance techniques, covert sources and access to communications data, as well as the purposes for them of doing so. However, we do not believe that these consolidation orders have gone far enough. We think that the Government should be taking more of a lead in this area. They are instead, I fear, using the outcome of an inherently limited public consultation to justify quite little action. We welcome what they have decided to do but we think that they should go considerably further.

As many noble Lords will be aware, in relation to the use of directed surveillance and covert human intelligence, the Chief Surveillance Commissioner has said that there has been,

The Home Office itself acknowledges:

"Recourse to covert techniques under RIPA should be considered only when it has reasonably been concluded that these other tactics would not be appropriate; but it is clear that, in some instances, these other tactics have been ruled out too quickly and RIPA has been a first, rather than a last, resort".

That is a Home Office statement and needs, obviously, to be taken rather seriously. Here one thinks, in particular, of the uses that some local authorities have made of surveillance and other covert powers under the Act. Perhaps it is the wide drafting of Section 29(3) of RIPA-in particular, condition (g), which allows the Secretary of State to authorise the use of such powers for any purposes that he sees fit-that encourages this broad interpretation. The question obviously is: what limits are now placed on the interpretation of this section?

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