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We are all aware that the burden for enforcement of certain pieces of legislation has gradually shifted from the police to various public bodies, including local

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authorities. The Government have always maintained that the use of covert techniques in relation to such investigations was subject to the test of necessity and proportionality-a point that the Minister underlined. The revised codes of practice are meant to give additional guidance on this, as the tests have clearly not been applied adequately to date. Therefore, guidance becomes very important. What can the Minister say on whether and how an authorising officer is meant to demonstrate that he has considered whether the information sought could be reasonably obtained by other non-covert means? What, in other words, are the tests? How is he meant to demonstrate the benefits of information to the investigation before acquiring it? Can the Minister also confirm that the Government have now added a third test to the use of the powers under Part 1 of RIPA, which is the requirement for authorising officers to consider the seriousness of the offence being investigated? This seems to me to be part of the test of reasonableness and proportionality.

Is there not also a more fundamental point? If the offences that public bodies are required to investigate are defined in statute, should not the Government be able to introduce stricter guidance on the offences that covert techniques can be applied to? It seems to me there is still too much vagueness in this area. The orders seem to show that the Government have gone down this route, but only to a limited extent. For example, the Department for Work and Pensions, the Postal Services Commission and the Royal Mail have been stripped of their powers to authorise the use of covert intelligence sources, but they retain powers in relation to directed surveillance. The Government have also decided to remove HMRC's power to authorise directed surveillance to ensure the UK's economic well-being. However, the Explanatory Notes to these orders do not provide enough detail to explain the basis for these decisions. Have the functions of these organisations changed significantly over recent years to justify this or were they granted too many powers in the first place? Nor do the Explanatory Notes contain enough detail for this House to judge the appropriateness of the different bodies even having such powers.

Similar questions can be raised about access to and use by local authorities and some other public bodies of communications data. The Government have explained what they call the "business need" for the Northern Ireland Prison Service, the Department of the Environment in Northern Ireland and the Child Maintenance and Enforcement Commission to have access to communications data, as well as for the Department for Transport accident investigation branches, the Independent Police Complaints Commission and the Prison Service to have still wider powers of access. But why have the Government not explained in greater detail why other bodies have been allowed to retain these powers? This is a selective list and a selective approach.

Can the Minister also say what input the independent oversight commissioners have had into the Government's decision to add or remove powers through these orders? He mentioned the function of those gentlemen. In another place, the Minister with responsibility for policing, crime and counterterrorism said that the

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Interception of Communications Commissioner agreed that access by the Child Maintenance and Enforcement Commission to communications data was proportionate, but could the noble and learned Lord tell us the commissioner's view of the other changes that we are debating today and of the retention by other bodies of their existing powers? Did the surveillance commissioners input into the proposed changes under Part 1 of RIPA? It would be helpful to know how much of a role the commissioner was able to play.

It is strange that, in relation to very intrusive enforcement and investigation powers, the Government seem to equate the functions of different bodies. HMRC has lost the power to authorise directed surveillance to protect the economy, yet local authorities retain it for unspecified purposes. This is the crux of the matter: how are we able to judge the appropriateness of different bodies being entitled to such powers? The criteria do not seem to be available.

We on these Benches have made clear our position, which is that the use of RIPA powers by local authorities should be restricted to investigations concerning serious criminal offences-in other words, those offences that could be subject to a custodial sentence. We have called for greater democratic and judicial responsibility for and oversight of the use of these powers by local authorities. We also want to see magistrates issuing a warrant for the use of RIPA and for requests, having been approved by a council officer, to be signed off by the council leader. We want to go pretty high.

In contrast, the Government's proposal is to raise the rank of authorising officers in local authorities to at least director level, as the Minister mentioned. The Government argue that involving council leaders in authorising RIPA powers could politicise investigations, although the Minister in another place left open the possibility that it would be feasible and practical for representations to be made to change that. Does the Minister agree with the availability of this option? It would certainly be an advance on the revised codes of practice, which allow elected members to review their local authority's policy for the use of RIPA at least once a year and to consider reports on its use every quarter. This would be a welcome innovation. The Government also argue that involving magistrates could slow down the process to the detriment of investigations. Can the Minister explain this, as presumably local authorities do not tend to investigate risk-to-life cases? If the case is not a risk-to-life one, what is the problem about seeking the authority of a magistrate?

3.30 pm

I mentioned that part of the rationale underpinning the revised codes of practice is to provide clearer guidance on the tests to be applied for using RIPA powers. As I said, greater guidance should be given on when powers should be used in relation to different offences. What progress has been made on producing a tailor-made guidance manual in conjunction with the Local Government Association and the Local Authorities Co-ordinators of Regulatory Services?

I am sure that the Minister will agree that, whatever guidance is in place, training is also crucial to the proportionate use of RIPA. There has been considerable

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concern to date about the training given to local authority employees involved in applying for and accessing communications data. The Interception of Communications Commissioner's most recent report stated that local authority employees did not have the same training as their counterparts in other public bodies and were therefore unable to obtain the best possible compliance with the code of practice. What training have local authority employees previously received and what are the intentions for the future? What accredited training packages are now in place following the consultation and how many individuals have been through them?

Under the revised codes of practice, the Government also want corporate leadership teams to ensure that authorising officers fulfil and maintain appropriate standards, as required by the Office of Surveillance Commissioners in relation to Part 1 of RIPA. It would be helpful if the Minister could say what progress has been made in ensuring that each local authority appoints a single officer to ensure compliance with minimum standards as set out by the relevant commissioners. The two issues of training and authorisation are related.

Finally, what sanctions are available in relation to the misuse of RIPA powers? We know that factual errors are reported annually by the commissioners. The Minister in another place also said that the frequency and intensity of statutory inspections on the organisations concerned will be increased. How will that be achieved given the strained resource environment and scale of authorisations, which remains considerable? What sanctions can be applied by those oversight bodies?

We will not oppose these orders as they go some way towards what is needed-and what the Government have not provided-which is a fundamental assessment of the appropriate use by public authorities of the different powers available under RIPA. These reforms are not in place today and will need further consideration in due course, but it would be helpful if the Minister could address a few of the more important points that I raised. Why have the Government not been able to introduce stricter guidance on which offences are suitable for the application of covert techniques? How are authorising officers able to demonstrate that the tests of proportionality, reasonableness and seriousness have been met? What input have the independent oversight commissioners had into the Government's decision to add or remove powers through these orders, and what accredited training is now in place before appropriate individuals can authorise and use these powers?

Lord Lloyd of Berwick: My Lords, on 30 November 2007, the Divisional Court in McE against the Prison Service of Northern Ireland-a case to which the noble and learned Lord referred-held that listening in to privileged conversations between a suspect and his legal advisers, whether in a police station or prison, could not be carried out lawfully under the relevant code in its present form. What was the Secretary of State's reaction to that decision? She did not appeal. She said that she would consider the matter as one of policy and take steps to remedy the Divisional Court's concern. However, as the noble and learned Lord, Lord Phillips, pointed out in 2009-appeal case 908, at page 927-that response was unsatisfactory. The

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Divisional Court did more than express concern at what had happened; it held in the clearest possible terms that the Secretary of State was acting unlawfully.

Only now, nearly two and a half years later, are the Government taking steps to remedy the position, so the question arises: did any surveillance of privileged conversations take place in the mean time? If the answer is yes-as one must presume is the case-does it not follow that the Government have been sanctioning a practice that they knew to be illegal? Is that not also a matter of great regret, in addition to the regret that will no doubt be expressed by the noble Baroness, Lady Hamwee, in a few moments? Indeed, in the same case, the noble and learned Lord, Lord Neuberger, described this state of affairs as being more than regrettable, so the question is: what do the Government propose to do about that state of affairs?

Baroness Hamwee: My Lords, our objections to the extent of the powers stem, to a very large extent, from the underlying legislation, so it is difficult to direct my remarks narrowly to the orders when I should like to say that we might not have started from here. Coming, as I am, as a new reader to these issues-in detail, in any event-what strikes me is that so many of the demarcation lines are grey, or at least it is difficult to be precise about them. The codes that are the subject of two of the orders and which have great weight under Section 72 of the Act-the noble and learned Lord has just referred to this-frequently use terms such as "not normally", "an individual is advised", "such and such should be considered". To pick up one of the points made by the noble Baroness on training, the amount and the depth of training which must be required to implement these measures seems to me very considerable. I wonder how effective it can be.

We are troubled by the extension of the right to use these powers. I think that originally nine organisations had the right to use them; now, many hundreds do. This month, the Child Maintenance and Enforcement Commission will be given powers, including the power to use covert human intelligence sources. The list of organisations-admittedly, they have very important functions-now able to take their own decisions about purposes which entitle them to seek authorisation for surveillance seems to us very wide. One of the purposes concerns the interests of economic well-being. That is particularly wide and is, I suggest, a matter of subjective judgment. Is it appropriate that many of these organisations should be required to go via the police in order to undertake surveillance? This was very much the theme of much of what the noble Baroness has just said. We are told that the port of Dover-I think I learnt this from reading the debate in the Commons-has accepted that that would be the right mechanism, and it is coming out of the regime. It is difficult to understand why others are not doing so.

I mentioned the Child Maintenance and Enforcement Commission. We are told in the Explanatory Memorandum to the relevant order that it,

Are criminal investigations not a matter for the police?

As I have said, it seems to me that many of the judgments that have to be made are subjective as well

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as difficult. The Merits of Statutory Instruments Committee raised the point in its questions to the Home Office, stating:

"The Government position is that covert investigation under RIPA should only be used when other reasonable options have been considered and ruled out, and the revised codes emphasise this point. Why hasn't this requirement been put in legislation rather than the code?".

The Home Office response was to point to new guidance being developed to help local authorities weigh the matter up in this case, and to say:

"You are right, therefore, to suggest that in the case of directed surveillance this is a matter of guidance rather than law".

These are serious matters, and it troubles me that guidance, rather than law, is what is relied on.

This takes me to my central concern: that there is no judicial oversight of the exercise of powers, no external control or judgment before the event. Where there is urgency, out-of-hours judges or magistrates could be used. That matter troubled the House in a different context not very long ago when we were debating warrants to access property. If the answer is workload, that in itself raises worrying questions. What we have here is self-authorisation by the agencies concerned. Will the Minister reassure us that officers who start to consider the use of surveillance powers are uniformly such paragons that they will rein in their natural human ambition to get what might be called "a result"?

The draft code of practice on covert surveillance and property interference says that,

"Authorising officers should not normally be responsible for authorising operations in which they are directly involved, although it is recognised that this may sometimes be unavoidable, especially in the case of small organisations, or where it is necessary to act urgently or for security reasons".

It seems to me that there must be question marks as to whether that should often or ever be the case, because it is so important that the perception of a conflict of interest is avoided, as well as the reality of any conflict of interest. This is particularly important when a fine judgment is required as to, for instance, whether there would be disproportionate interference with private and family life.

As for urgent cases involving intrusive surveillance, again, the code states that,

an authorising officer is not available. There is certainly the caveat that when an agency has brought it on itself by not having somebody available, it should not be able to take advantage of that situation. The monitoring of this must be extraordinarily difficult. I hope that the Minister will expand on how one can ensure that proprieties are observed. There seem to be inherent fault lines so that it will never be possible to say how the codes deal with proportionality or whether they deal with them adequately.

3.45 pm

The examples in the codes are not overly helpful. They go very much along the lines of on the one hand and on the other, but I will not take up your Lordships' time by reading them. Examples of particular

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circumstances are explained. In one case we are told that surveillance is unlikely to be necessary or proportionate, but maybe that will not be the case. That language is used throughout the examples.

I acknowledge that there are many improvements and some tightening up, but it is appropriate to focus on the concerns. Some of the tightening up puzzles me. Why remove the ability of the Food Standards Agency to use public safety as its purpose? I might have questioned that with regard to some other agencies, but the Food Standards Agency should have public safety absolutely in its focus. What are the safeguards against the pre-emptive use of surveillance for legitimate, democratic process?

I have referred to the orders which require an affirmative resolution. We have the negative orders as well. I apologise to the House that my Motion referred to an order which had been withdrawn. However, the fact that it is on the Order Paper probably indicates that I was not the only person who was confused about this-otherwise, knowing how eagle-eyed the House authorities are, it would not be there.

The Motion is there because it goes against every fibre of my being that communication between a client and his lawyer could be the subject of surveillance. I acknowledge what I think was called the enhanced regime for authorisation. I appreciate that privilege does not extend to communications which are in furtherance of a criminal purpose. But to allow the Prison Service to listen in, not knowing whether something is in furtherance of a criminal purpose until quite a lot of the discussion has been listened to, offends me. Within this segment of the rules, we have the wide criterion of necessity in the interests of the economic well-being of the UK. It is possible to cancel authorisations. What monitoring is there of authorisations and cancellations? The temptation must be to leave authorisations in effect.

When I saw the order in rather a hurry just before the Recess and I put down my Motion, I confess that I was so naïve that I had not appreciated that this was not new. Nevertheless, I wanted to use the opportunity to express-I will put it very temperately-my distaste at the situation. The Minister has said that if it is right to obtain information by microphone, it is the same through an individual. I question the basic premise of that.

It was clearly sensible to debate the affirmative and negative orders in tandem. I will not seek to divide the House, which I do not think would take us a great deal further. But I will end by saying that with the affirmative orders we have a good deal of consolidation, but we need considerably more with consistent explanation of the criteria.

Lord Pannick: My Lords, I share the concerns expressed by all three previous speakers. As is the noble and learned Lord, Lord Lloyd of Berwick, I am particularly concerned about the delays that have occurred in dealing with legally privileged material. The position is clear. The McE judgment was delivered by the Appellate Committee of your Lordships' House on 11 March 2009. The Senior Law Lord, now president of the Supreme Court, the noble and learned Lord, Lord Phillips of Worth Matravers, noted that the

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Secretary of State had not appealed from the judgment of the Divisional Courts, which was dated as long ago as 30 November 2007. It found that the Secretary of State had been acting unlawfully because surveillance on legally privileged material should be classified as intrusive surveillance with strict controls.

The noble and learned Lord, Lord Phillips, pointed out that it was highly unsatisfactory that the Secretary of State had taken no steps at all to comply with the judgment of the Divisional Court, even though she had decided not to appeal against it. The noble and learned Lords, Lord Carswell and Lord Neuberger of Abbotsbury, also criticised the fact that the Secretary of State had not complied with the judgment, which she did not challenge, and that after more than a year she was not even in a position to produce a draft regulation embodying the changes necessary to ensure legality in this area. It has now taken another year for the relevant order to be brought before the House.

Will the Minister please explain why it has taken so long to rectify the illegality identified by the Divisional Court in November 2007, which was accepted by the Secretary of State to be illegal at the end of 2007? How can the Government justify acting for another two-and-a-quarter years, until now, under a regime which was found to be unlawful and which the Government accepted to be unlawful? The Government's approach to this matter suggests that they may not recognise the vital need for proper legal controls of the activities of the relevant agencies in this highly sensitive area.

Will the Minister reassure the House that nothing in the orders dealing with legally-privileged material purports to affect whether it would be a breach of legal professional privilege, and therefore unlawful, for the state to rely on this legal consultation material in court? In McE, the noble and learned Lord, Lord Carswell, said that the inviolability of the rule against the admission in evidence in court of privileged communications remains-save, of course, where the material exists in furtherance of crime or fraud. Will the Minister reassure the House in relation to that matter?

Lord Davidson of Glen Clova: My Lords, I am grateful for the extent of the debate on this point. It has covered a matter of considerable constitutional importance. All the proposals here, however, concern public authorities acting in ways that are covert and they plainly need careful consideration. The Government recognise and fully support the principle that any public authority interference with someone's right to privacy must be sanctioned only when necessary and proportionate with regard to human rights. That is precisely what Parliament passed RIPA to do. This is the right balance between effective discharge of the tasks faced by public authorities in this area and the protection of individual freedoms and the right to privacy.

The points made by the noble Baroness, Lady Neville-Jones, were manifold and I will seek to deal with these. I first acknowledge that she welcomed these orders as a step forward, although she felt that matters should go further. However, I am grateful for the recognition of, and welcome for, the improvement that the statutory instruments produce.



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The points that have been adduced are as follows. It is said that there is a serious misunderstanding of proportionality and that, in certain cases, local authorities resort too early to RIPA. It is because one identifies that as an issue that the codes of practice have been brought forward to make it clearer to local authorities where the balance must lie. It is also in that context that training manuals have been produced to improve the understanding of local authorities.

On the notion that Section 29(3)(g) of RIPA is too vague, the provision has none the less been employed without successful challenge to its lawfulness on human rights grounds. On the provisions requiring necessity and proportionality, the tests are precisely what they say they are. Where necessity is required, it is because there may be alternative ways in which to acquire the relevant information but the covert method has been ascertained to be necessary in the particular circumstance. The addition of seriousness perhaps indicates the way in which the Government have recognised that there requires to be greater clarification and tightening of the way in which these powers may be deployed by local authorities.

The question is put of how the assessment of proportionality may be made when one is unaware of what the covert surveillance may recover. This is always a paradox; it is not new. It is perhaps identified in McE by the noble and learned Lord, Lord Neuberger, but he makes it quite clear, none the less, that that does not found a challenge to the lawfulness of the way in which RIPA operates.


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