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The purpose of Amendment 126 is to introduce a safety clause. I think that the Minister may be prepared to accept it. Once amended by the Protection of Freedoms Bill, public bodies will be able to get round the safeguards by accepting evidence gathered by non-public bodies using covert surveillance that could not have been authorised by the public body itself. This may mean that the public body, in good faith, is offered information or materials that could be helpful in pursuing its course by a private sector or non-public body. The question is therefore whether the public body has any responsibility for this and for the information provided. The suggestion here is that if freedoms are to be protected the loophole must be closed and it must not be acceptable for information to be gathered covertly without proper authorisation and used for prosecution. That means that the public body must take responsibility

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for any information that may be gathered and its name must be linked to it. Thus any information that is gathered that the public body has not itself authorised or been associated with should be excluded from any efforts of prosecution.

We know that many examples of this are being pushed around at present. The amendment is relatively simple; it says that anything that is done in the name of a public body, or is misused in the public body's name, must be the responsibility of the public body, which should be responsible for making sure that everything is in order.

Lord Henley: My Lords, just to make sure that I get things right, I should make it clear that it is my understanding from the intervention from the Deputy Chairman of Committees that we are dealing with Amendments 115 and 120 to 128, but not with those in the name of my noble friend Lord Phillips, which start at Amendment 116, those being a separate group.

The Deputy Chairman of Committees: Amendment 122 is in the second group.

Lord Henley: I take that correction. I do not know how long we will spend finishing off this amendment, but perhaps this one or the next should be the last one that we deal with today, because I think we have made pretty good progress. We have will have a relatively short list of amendments to discuss for the next day and will have no problem finishing off Committee stage when we return after Christmas.

I am grateful to both my noble friends Lady Miller and Lord Selsdon for setting out their arguments in support of these amendments and I shall briefly deal with them. I start with Amendment 115 and the amendments associated with it-Amendments 120, 121, 123, 125 and 127-which leave out "relevant" or "relevant person". We are introducing a judicial approval mechanism to restore public confidence in local authorities' use of covert techniques. Local authorities will no longer be able to self-authorise or to use directed surveillance in trivial cases, thereby further safeguarding personal privacy. Such public concern does not exist for the use of covert techniques in cases of serious crime or national security. In a judicial review it will be for the magistrate to approve the authorisation for local authorities to use such techniques only where he or she believes that use of the technique would be both necessary and proportionate.

Imposing judicial approval on all public authorities, law enforcement and intelligence agencies, which the amendment of my noble friend Lady Miller seeks to do, could seriously impair the operational effectiveness of such organisations. Having to seek a magistrate's approval may, given the extent to which such techniques are used, result in operational delay, which could have grave consequences. Furthermore, it is wholly inappropriate for the sensitive nature of these cases to be disposed to a local magistrate.

RIPA authorisations for the most sensitive techniques, such as intrusive surveillance and interception, which may be used only by law enforcement and intelligence

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agencies, are already pre-approved by a surveillance commissioner or the Secretary of State. The Government will continue to keep the use of RIPA under review and respond in the most appropriate way if there is evidence of misuse. If in the future there is a compelling case for extending the requirement for prior judicial authorisation for certain other public authorities, these clauses confer an order-making power to enable this to happen.

On the second part of Amendment 128, my noble friend Lady Miller suggested that there should be a further review by an independent reviewer. I appreciate that the concern behind the amendment is that the Act is now some 10 years old and that the pace of technological development during this time has been unparalleled, a point to which my noble friend Lord Selsdon referred. I agree that how this legislation is performing and keeping pace with these developments is something on which we would naturally all seek assurance.

At its heart, RIPA is human rights legislation; it contains human rights safeguards to ensure that it carries on working as Parliament intended. Those safeguards include the appointment of independent bodies to oversee, inspect and redress wrongs. As the Committee will be aware, there are three independent commissioners-all of whom have held some of the highest judicial offices in the land-to examine various aspects of how RIPA is working and to publish their findings. Their inspection teams visit public authorities using RIPA powers and provide valuable advice on interpreting the law correctly, and surveillance commissioners authorise some of its more invasive techniques. In addition, those commissioners produce annual reports on their findings which are laid before Parliament each year. So we already have an effective mechanism for ongoing scrutiny and reporting the findings to Parliament. The commissioners will continue to inspect local authorities and will report on how the judicial approval provisions are working in practice.

As to the wider question of changing the law to permit intercept material to be used evidentially-which is currently prohibited by Section 17 of RIPA-that is already being independently reviewed by Sir John Chilcot, who is leading a cross-party group of privy counsellors to examine how a model to permit this could work in practice. The Government will bring the subject before Parliament again once the cross-party committee has finished taking evidence. When it does so is a matter over which I have no control, but I look forward to being able to debate these matters in due course.

7 pm

I turn finally to Amendment 126 in the name of my noble friend Lord Selsdon. I understand the concerns that he has raised about the perceived lack of regulation of non-government organisations and private individuals conducting covert surveillance. I hope that I can offer some reassurance to my noble friend.

On the narrow point, I think that decisions on the admissibility of covert evidence should properly rest with the court. However, having listened to his concerns, I would be prepared to have a further look at the issue. If my noble friend would be happy not to press his

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amendment on this occasion, we could have further discussions about it between now and Report-which, as we know from assurances that I gave earlier, is unlikely to be before the end of January-and see whether we might come forward with some suitable change at that stage.

I hope that the assurances and explanations that I have given to my noble friend Lady Miller are sufficient and that she might therefore feel able to withdraw her amendment. If that was the case, and with the agreement of other Members of the Committee, it might then be a suitable point at which to adjourn the Committee and continue with it on another occasion.

Baroness Miller of Chilthorne Domer: My Lords, I must congratulate the noble Lord, Lord Selsdon, on his success in having his amendment taken forward to the next stage. Every small move in this direction is very important, because, as my noble friend Lord Phillips of Sudbury said, this is a matter of civic trust. I thank the Minister for his reply. The issue of civic

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trust comes up because of the inability of current legislation to deal with the scale of interference in areas such as internet use. The intelligence agencies and the police have better systems in place; I have in mind instances where people do not know about the interference, such as in the BT and Phorm case. A natural tension exists: it is the duty of government to consent to intrusion in the interests of security and crime prevention, but it is the duty of Parliament to make sure that those intrusions are proportionate. Although I shall on this occasion withdraw the amendment, I hope that we will return to it. I beg leave to withdraw the amendment.

Amendment 115 withdrawn.

Lord Henley: My Lords, with the agreement of the Committee, this might be a convenient moment to adjourn until Thursday at 2 pm.

Committee adjourned at 7.03 pm.


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