Regulation of Investigatory Powers (Covert Human Intelligence Sources: Code of Practice) Order 2002

– in the House of Lords at 7:46 pm on 18th July 2002.

Alert me about debates like this

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

My Lords, in moving the draft order, I shall speak also to the Regulation of Investigatory Powers (Covert Surveillance: Code of Practice) Order 2002, because the two codes of practice have many common features.

Both orders have been laid under the Regulation of Investigatory Powers Act 2000. They have been made in exercise of the powers conferred on the Secretary of State by Section 71 of the Act. Section 71(1) requires the Secretary of State to issue codes of practice relating to the exercise and performance of powers and duties under that Act.

The codes support the Act by providing clear and, we hope, unambiguous guidance on authorising the carrying out of covert surveillance and the use of covert human intelligence sources. Section 71(3) requires all draft codes of practice issued under RIPA to be published and the Secretary of State to consider any representations.

The provisions in Part 2 of the Act provide, for the first time, for a framework for the use of covert surveillance and covert human intelligence sources that is compliant with the European Convention on Human Rights. The codes of practice provide a framework within which public authorities should operate, require that records are kept on the decision-making process and that issues of necessity and proportionality must be taken into account before an authorisation can be granted, to ensure consistency with obligations under the ECHR and the Human Rights Act 1998. The orders do not add to the public authorities already covered by RIPA and listed in Part 1 of Schedule 1.

Both codes also provide additional safeguards and a higher level of authorisation in cases where confidential information is likely to be acquired. The draft codes do not provide those public authorities with any additional powers. They set out further safeguards and place added restrictions over and above those already contained in RIPA for cases involving confidential information. I labour that point slightly, because there was previous misunderstanding of it.

The orders provide public authorities already covered by RIPA for those purposes and the public with clear and unambiguous statutory guidelines on the proper procedures and requirements for authorising the use of the provisions. In my view, the orders are compatible with the rights set out in the European Convention on Human Rights. I beg to move.

Moved, That the draft order laid before the House on 10th June be approved [33rd Report from the Joint Committee].—(Lord Filkin.)

Photo of Viscount Colville of Culross Viscount Colville of Culross Crossbench

My Lords, not merely are the orders compatible with Part 2 of the Regulation of Investigatory Powers Act 2000, they are an essential ingredient of it. I do not know anything about Part I. I wish that I had joined the noble Lords, Lord McNally and Lord Bassam of Brighton, in discussing the legislation, because I am now extremely familiar with Part II, to which the orders relate. There is sister legislation in Scotland about which I shall also make some observations.

I must declare my interest. Under the Regulation of Investigatory Powers Act 2000, there is a job for the Office of Surveillance Commissioners. The office was set up under the Police Act 1997, and they now have an extended power to examine the way in which public bodies use their powers and carry out the functions under Part II of the 2000 Act mentioned by the Minister. It is an important role. Not only is it the sole way in which article 8 of the European Convention can be given effect for the benefit of the citizens of this country but it is a great protection to public authorities. If they use their powers correctly, they will be protected against complaints and other actions by those who feel that they have been dealt with improperly by the public authority and had their privacy infringed.

The procedures must be correct. Part II of the Act is not the most brilliantly transparent legislation that I have seen. That is why I would like to have taken part in the discussions. In the Office of Surveillance Commissioners, there are several ranks. I am one of the most junior, but, as a surveillance commissioner, I go round inspecting public authorities not involved in law enforcement all over the United Kingdom. Since the Act came into force in October 2000, we have lacked the codes of practice that the Minister is now introducing. There were some drafts, but they were not very good. Now, we have an order that brings into force codes of practice that will help us all. They will be an essential tool of my trade. During an inspection of a local authority earlier this week, I used them to point out the way in which things ought to be done in accordance with the codes.

There has been consultation. We were consulted, and all the things that we wanted—except, I think, one—are in the codes. They will be immensely useful for the purposes of ensuring that the procedure is properly carried out. It would be less than grateful of me if I did not say to the Home Office that we are pleased to have the codes of practice. We shall use them to good effect from now on. I know that, if the courts intervene, codes of practice can be changed, and we might have amendments in due time. For the moment, the codes will do extremely well, and they will underpin greater understanding of some difficult legislation.

I welcome the codes. I, for one, will use them a great deal.

Photo of Baroness Seccombe Baroness Seccombe Conservative

My Lords, I am grateful to the Minister for his explanation of the orders. When they were debated in another place, my honourable friends voted against them. As a consequence, the Minister, Mr Bob Ainsworth wrote a letter to my honourable friend Mr Nick Hawkins that sought to explain further the matters on which my honourable friend had expressed opposition. The explanation in the letter has made it possible for us to refrain from opposing the order today.

We fully appreciate that the draft codes have been made in exercise of the powers conferred on the Secretary of State by Section 71 of the Regulation of Investigatory Powers Act 2000, which requires the Secretary of State to issue codes of practice relating to the exercise and performance of powers and duties under RIPA. The assurance given by Mr Ainsworth in his letter that the orders did not add to the public authorities already covered by RIPA and listed in Schedule 1 is important, as is his assurance that the draft codes do not provide those public authorities with any additional powers. We accept that chapter 3—in particular, paragraph 3.2—of both draft codes of practice sets out further safeguards and places restrictions over and above those contained in RIPA on the public authorities listed in annex A of the codes.

Throughout the scrutiny of the orders, it has not been our intention to deprive public authorities already covered by RIPA for these purposes and the public of clear statutory guidelines on proper procedures. We endorse the safeguards in the code. Our purpose throughout has been to ensure proper scrutiny of the orders, and that has now been achieved.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

My Lords, with my noble friend Lord McNally, I was deeply enmeshed in the debate on the original Regulation of Investigatory Powers Act. The noble Viscount, Lord Colville of Culross, is now deeply involved in the implementation of the Act as a commissioner. It is mildly reassuring to hear him say that it is complex legislation. The interweaving of the statutes set out at the start of both codes, other statutes not highlighted in the codes, the statutory instruments made under those statutes and the codes themselves has created a legal Bermuda Triangle into which few will venture with any confidence of emerging with the right answer.

One of the issues raised in the debate on the legislation was whether the codes would be duly, comprehensively and properly observed, however well they looked on the page. When we debated the Bill, there was a general lack of confidence that the resources would be made available to allow it to work properly. Now, there is serious doubt—in the mind of those on these Benches, at any rate—that there will be sufficient resources of the right sort to implement the codes. The overall legislative framework is difficult for us legislators, even though some of us are practising lawyers, so we must have huge sympathy for the public authorities and officials who will have to find their way round that jigsaw puzzle while doing highly pressurised jobs. They have many demands on their time and are unable to prioritise what they do because of the emergencies with which they must contend.

One of the issues that the Minister must address is the allocation of resources to the commissioners—the surveillance commissioners, the interception of communications commissioners and others. How many people will there be in how many offices? The House also deserves to know what extra budgetary allowance has been made for—to take the example of one of the principal public authorities—the police? It will require a significant increase in paperwork for them to observe properly the terms of the legislation and the codes. We need only think of reviews or cancellations of surveillance orders, intrusive or not. We need only consider the stages set out in the codes to realise that they represent a significant addition to the already heavy bureaucratic obligations on the police and other public authorities.

I should be grateful to learn whether the Government have thought about this and specific allowance has been made for it. In that way we will be assured that the impressive verbal reassurance on the face of the codes will be implemented, not only now and then but in all cases.

Unless the Minister suspects that I am being a little pedantic about this, when sitting in this gilded Chamber it is terribly easy to forget that the powers in the RIPA 2000 and under these codes are the most heavily intrusive and potentially dangerous to the liberty of the subject that we have in our entire law. For that reason, the need to be reassured on issues of resources, both with regard to those charged with overseeing the proper implementation of the Act and the codes and for those who will have to use the powers day by day is great. They are not marginal matters; rather they go to the heart of the concerns expressed both in this House and in the other place throughout the passage of the legislation about the wisdom of it. That is because, on whichever Bench noble Lords sit in this House, and whether noble Lords have been in government, we know only too well the terrible tendency of modern governments to legislate voluminously and generously without having sufficient regard for the practical, on-the-ground impact.

Great relief and gratitude is felt on these Benches—I am sure that I speak for other Benches as well—that the Home Secretary has withdrawn the other statutory instruments that initially he was minded to bring forward under the Act. I thank David Blunkett for the direct and unvarnished way he presented his decision to the public. It was most refreshing to find a Minister acting in that way.

I turn now to record keeping. Those bold enough to try to follow the legislation have expressed deep concerns about intrusion into the privacy of the subject, in particular in terms of what information on citizens is to be stored under this tangled web of legislation. Perhaps I may make a general apology to the Minister for not having given him notice of the various points that I shall raise, but I was brought into the lists, so to speak, only today.

I should like to be reassured on paragraph 2.14, covering the central record of all authorisations. I wish to draw particular attention to the fact that there does not appear to be a central, national record of authorisations or any information on what is done with them. The code refers to a "centrally retrievable record", but that is to be held by "each public authority". Surely it would be easier for those tasked with overseeing the process, with resources that will never be sufficient to cover everything, if there was in place a retrievable national record.

Under what circumstances would a member of the public either identified or referred to in the records have the right to search against the same in order to discover if he or she had been the subject of an authorisation, whether or not the authorisation was still live? I do not expect an answer tonight, but I recall that during the course of our debates this issue was keenly debated. We should not forget that the entire defence mechanism of the tribunal set up under the auspices of the Act will be an empty vessel if those who may have complaints to bring do not know that they have a complaint to make.

One of the most disturbing aspects of state warehousing of information on individual citizens is that those citizens never get to know that they are on the state records, whether the records are correct and whether or not they should be included in terms of legislative permit. How are authorisations cancelled; what is the process? Who oversees the cancellation process? By what means can the person charged with the task go about their business? In all, I was left more rather than less worried after reading paragraphs 2.14 to 2.18 of the code.

Paragraph 2.16 deals with the destruction of "the product"—an unhappy phrase. Who decides, and on what criteria, whether and how destruction is to take place? Who decides whether a further period of retention is to be sought? Under paragraph 2.18, I should like to know how the information referred to is accessed. Is there to be further resort to the authorising senior officer if and when a further retention of information is required?

I hope not to delay the House for too long, but these are important matters. I turn now to the question of "confidential personal information" dealt with at paragraph 6.30 onwards. I am sure that all noble Lords will appreciate the importance of this part of the code. It allows the powers of the Act to be used in circumstances covering personal information. That could be information subject to legal privilege; it could be journalistic information or it could be the information that passes between a priest and someone resorting to him. Again, I am left feeling unhappy about where the code takes us.

Perhaps I may refer to paragraph 3.10:

"Communications involving Confidential Personal Information and Confidential Journalistic Material".

That suggests the extent to which these powers will be used in the most sensitive of circumstances. I say only that the kind of fears expressed in the House—and at times thought to be exaggerated by government spokesmen—are here made flesh, so to speak.

I turn briefly to communications subject to legal privilege. It appears that legal privilege would be breached if,

"there are grounds to believe that the professional legal adviser is intending to hold or use the information concerned for a criminal purpose".

That will give someone using the powers the right to breach a legal privilege, which in our law is the one unique and special relationship of privilege, if the person concerned thinks that there are grounds for believing that the professional legal adviser is engaged in a criminal purpose. Again, special arrangements have been made under paragraph 6.30 to ensure that the prior approval of a special commissioner must be sought.

The central point I wish to make here is that that very real protection in an extremely sensitive class of circumstance is not a statutory protection. I do not think that paragraph 6.30, covering the requirement for the prior approval of a surveillance commissioner, is reflected in the Act itself. That means that the protection is unsafe and should have been included in the Act. Our feeling on these Benches is that this and many other aspects of the code should have been in primary legislation. It is no good saying that on the whole the police, NCIS, the military and so on are decent, honest fellows. The whole point of legislation giving the state power over citizens is for us to act as watchdogs against the few bad apples that can, and always will, disregard the proprieties.

Given that these aspects of the code are not in the primary legislation, Section 72 of the Regulation of Investigatory Powers Act does not give any solace. It states expressly that failure to comply with any provision of the code of practice shall not of itself render the person breaching the code liable to any criminal or civil proceedings. I am not even sure that any such breach has to be brought to the attention of the surveillance commissioner. Again, I should be grateful if the Minister would at some stage come back to me on that point. It is surely a massive lacuna in an already weak protection—that is, a non-statutory code, a breach of which does not automatically give rise to any civil or criminal proceedings—not to have such a breach specifically brought to the attention of the surveillance commissioner.

I am told that debate on the orders should end at 8.30 p.m. Therefore, I shall need to romp through the remainder of the points that I want to make. I turn first to consultation. I am not at all sure that consultation on these codes was adequate. I have been in touch with a number of organisations which one might have thought would take a great interest in the contents. I should be grateful to know how the Government consulted. Did they go out to various organisations, or did they simply post the draft code on the Internet? How long did they give for consultation and how many people made representations to them?

I have touched on the issue of complaints. It is a huge hole.

I turn finally to the use of vulnerable individuals and juveniles under the cover human intelligence sources code of practice. They are two classes of person to whom we have a particular obligation. The code states that vulnerable individuals can be used as sources of information under the powers given in RIPA, but goes on to state that they shall be used as a source only,

"in the most exceptional circumstances".

No idea is given as to what that might mean. I wonder whether that reference is sufficient, in an area of the highest possible sensitivity, to protect vulnerable individuals from being used in that way.

Annex A lists the officers who may authorise the use of a vulnerable individual or a juvenile. We find that a chief officer of a local authority or the head of paid service has the power to authorise the use of vulnerable individuals for the purpose of acting as a source of covert intrusive or other information. Is that right? Is it right that the immediate senior officer of the DEFRA prosecution division should have that right? It is an enormously important one. I query whether all matters of the utilisation of vulnerable individuals should either have been included in the statute, or whether even now they should be included in an amending statute, or have to have the clearance of the surveillance commissioner, as for other sensitive issues under the Act.

Finally, under the heading "Juvenile sources", the code of practice states:

"On no occasion should the use or conduct of a source under 16 years of age be authorised to give information against his parents or any person who has parental responsibility for him".

Again, that is not a statutory provision. It is, therefore, subject only to the very weak provisions in Section 72. If anyone breached this provision and used someone under the age of 16 as an informant against a parent, what check could be made? Who would be told? Who would have the right of complaint? All this is shrouded in something worse than mystery. As matters stand, we have no assurance whatever that a breach of such an important aspect of the code would ever see the light of day, or ever get to the parents whose juvenile son or daughter had been so used in order that they could make a complaint.

Subject to those few points, we are disinclined to divide the House.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

My Lords, I thank the noble Lords who have spoken. I begin by thanking in particular the noble Viscount, Lord Colville of Culross, for bringing to our consideration of the orders some remarkable direct experience and expertise. I mark his point—which is sound—that the codes can develop in the light of circumstances and experience, as I am sure they will in time as circumstances change. That is, in part, why it is important that they are not on the face of the Act: they are much more flexible and can change with circumstances.

I thank the noble Baroness, Lady Seccombe, for her acknowledgement that the letter from my honourable friend Bob Ainsworth was helpful in clarifying a misunderstanding and for her endorsement of the safeguards contained in the code.

I shall do my best to minimise the length of the letter that will need to be sent to the noble Lord, Lord Phillips of Sudbury, by dealing with a number of points, but undoubtedly I shall not have time to deal with them all to his satisfaction.

The noble Lord raised questions about resources. The chief surveillance commissioner clearly had some concerns about ensuring that he was adequately resourced to do his job. We think that those issues have been addressed and that the office of the surveillance commissioner is properly resourced to undertake those responsibilities. No doubt in the light of experience he will be monitoring the situation in the future, as will the Home Office.

As to the police, no doubt—

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

My Lords, I asked how many individuals would be involved—how many staff the commissioners will have in order to do the work. Will the Minister give that information in his letter?

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

My Lords, I shall be delighted to provide that information when I write to the noble Lord.

With regard to the police, no doubt there are additional burdens, but they have received what is probably one of the more generous financial settlements for a while. Therefore, one hopes that they are not collapsing under the burden. I have not heard of any representations to that effect.

I was asked what would happen if the code was ignored. We do not believe that it will be. Public authorities are legally obliged by Section 71 of RIPA to follow the code, and the commissioner clearly has the responsibility to ensure that they do. Who checks that cancellations are carried out? The inspectors regularly inspect public authorities to ensure that these matters are complied with.

As regards public action against the records, the Data Protection Act applies to records held by public authorities. Individuals can make a subject access request to any public authority. However, in some circumstances the information will not have to be given if it would prejudice national security or the prevention or detection of crime.

In relation to paragraph 6.30, the provisions in Chapter 6 are to be found in Part III of the Police Act 1977. These codes replace the intrusive surveillance code of practice issued under the Police Act 1997.

I do not agree with the argument that records should be stored centrally. It seems to me that the records should be stored where the body is that is undertaking an investigation and where the surveillance commissioners can interrogate both the people who put them there and the documents at the same time, rather than moving to some data warehouse somewhere else.

There is no special protection for privileged information on lawyers or journalists or for medical information. On the other hand, it is clear that such information should not be accessed except in exceptional and compelling circumstances, as set out in paragraph 3.6 of the code.

With regard to whether information on vulnerable individuals should be used, we envisage such use only in limited circumstances. The code sets out further safeguards on the use of such sources above the requirements of the Act. The draft codes of practice on covert surveillance were consulted on, as signalled on the Home Office website. The public consultation period lasted from September to November 2000. The charge was that breach of the code gives no rise to noticeable or criminal liability. Covert surveillance per se is not criminal; Part 2 of RIPA makes surveillance lawful for human rights purposes. In other words, RIPA authorisation protects the public authority from civil claims under the Human Rights Act, the point made by the noble Viscount, Lord Colville.

The noble Lord, Lord Phillips, referred to the use of juveniles under 16 under paragraph 3.14. Article 3 of Statutory Instrument Number 2793—the Regulation of Investigatory Powers (Juveniles) Order 2000—states that juveniles under 16 may not be used to give information against their parents. I am sure that I have not dealt with all the points, but I shall write with fuller details.

On Question, Motion agreed to.