Regulation of Investigatory Powers Act 2000 (Amendment) Order (Northern Ireland) 2002

– in the Northern Ireland Assembly at 4:00 pm on 1st July 2002.

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Photo of Mr James Leslie Mr James Leslie UUP 4:00 pm, 1st July 2002

I beg to move

That the Regulation of Investigatory Powers Act 2000 (Amendment) Order (Northern Ireland) 2002 (SR 183/2002) be affirmed.

I want to outline the background to the Order and the reasons for introducing it to the Assembly. The Regulation of Investigatory Powers Act 2000 received Royal Assent on 28 July 2000. The Act’s main purpose is to ensure that the relevant investigatory powers are used in accordance with human rights. It updates the law on the interception of communications to take account of technological change, such as the growth of the Internet. It also puts other intrusive investigative techniques on a statutory footing for the first time. It provides new powers to help combat the threat posed by the rising criminal use of strong encryption and ensures that there is independent judicial oversight of the powers in the Act.

Part II of the Act, governing the use of covert surveillance, was brought into force to ensure that current surveillance operations are properly regulated and fully compliant with the Human Rights Act 1998, which came fully into force on 2 October 2000. Part II of the Act regulates activities such as the use of agents or informants, which have been used for many years by the law enforcement, security and intelligence agencies. This part of the Act also provides a legal basis for the surveillance activities presently carried out by a wide range of Departments in pursuance of their duties. Up until now, these activities have been authorised on a non-statutory basis. However, the Human Rights Act 1998 now requires there to be a legal framework in place for these activities.

Section 31 of the Act gives the Office of the First Minister and the Deputy First Minister an enabling power to make an Order under section 30 for the purposes of granting authorisations for conducting covert surveillance activities and/or the use of sources in Northern Ireland. It is by virtue of that power that this Statutory Rule has been prepared.

This Statutory Rule will list the public authorities in Northern Ireland that will be authorised to use covert surveillance, meaning the use of human intelligence sources under section 29 of the Investigatory Powers Act 2000 and/or the use of direct surveillance under section 28 of the Investigatory Powers Act 2000, as part of their normal work. It will then be necessary to prepare a second Statutory Rule that will list the rank or position of the official designated to authorise the surveillance in respect of the organisation. That will be submitted to the Assembly for approval once approval to this Rule has been obtained.

Members may wonder why those measures cannot be combined in a single Order. I am advised that there is a technical reason for that to do with the wording of the enabling provision in the parent Act. However, that will not alter the substance or effect of the provisions.

Surveillance plays a necessary part in modern life. It is used to target criminals, protect the public from harm and prevent crime. The Order will authorise the use of covert surveillance. That type of surveillance should be distinguished from general observation, which forms part of the duties of many law enforcement officers and other public bodies. For example, Customs and Excise officers may covertly observe and visit a shop as part of their enforcement function to verify the supply, or level of supply, of goods or services that may be liable to attacks. Such observation may involve the use of equipment to reinforce normal sensory perception, such as binoculars or a camera, where that does not involve systematic surveillance of an individual.

Such low-level activity will not usually be regulated under the provisions of the Investigatory Powers Act 2000; neither does the provisions of the Act cover the use of overt closed-circuit television surveillance systems. Members of the public are aware that such systems are in use for their protection and to prevent crime. The Order will cover the use of covert surveillance techniques and the use of covert human intelligence sources. The use of agents or informers has never been the subject of statutory control in this country. However, their continued use is essential to the maintenance of law and order and the protection of the public.

We introduce the Order following thorough equality impact assessments, public consultation and scrutiny by the Committee of the Centre. The equality impact assessments were carried out by individual Departments on the public authorities and activities for which they are responsible. While the assessments concluded that some differential impact is likely from the use of covert surveillance, that would not adversely affect equality of opportunity.

A public consultation exercise was carried out between February and April 2001. Over 800 copies of the consultation document were issued, and 19 responses were received, all of which were in favour of the proposal.

In conclusion, the Regulation of Investigatory Powers Act 2000 (Amendment) Order (Northern Ireland) 2002 is needed to ensure compliance with the Human Rights Act 1998 on surveillance activities. It does not introduce any new activities but merely puts existing surveillance activities on a statutory footing — activities that are essential for the protection and the continued well-being of the people of Northern Ireland.

I commend the Order to the Assembly.

Photo of Mr Oliver Gibson Mr Oliver Gibson DUP

The Committee of the Centre considered this Statutory Rule several times and, after clarification on a host of areas, is content. As the Minister said, the Regulation of Investigatory Powers Act 2000 is an Act of Parliament that received Royal Assent on 28 July 2000. It was enacted before the Human Rights Act 1998 came into effect in October 2000 to ensure that investigatory powers had a basis in law as required by article 8 of the European Convention on Human Rights.

In autumn the Committee expects to receive another Statutory Rule listing the rank and position of the officials who will be able to authorise the use of surveillance by each of the bodies listed in the Order. The Committee considered the reasons the bodies listed needed to be able to carry out surveillance and use covert human intelligence sources. We were careful to scrutinise the Department’s work on equality impact assessments, given the impact on human rights.

The Committee considered the draft Statutory Rule on Wednesday 26 June. When taken together with the Examiner of Statutory Rules’ report, the Committee is satisfied.

Photo of Francie Molloy Francie Molloy Sinn Féin 4:15 pm, 1st July 2002

Go raibh maith agat, a Cheann Comhairle. I have concerns about the human rights aspect. Has the Northern Ireland Human Rights Commission had an input? Has it examined that draft Statutory Rule and given an opinion on its effect on the legislation?

Statutory Rules can look well on paper, but their implementation, and the way that they have been abused in the past, is a matter for concern. It is not only about the right to conduct covert operations, it is a question of how those covert operations are used, who they are targeted against, and how authority can be misused, as we have seen time and time again.

Concerns arise over who will implement the various Regulations, and whether they are being directed against one section of the community or the other. Who will regulate and oversee the Regulations? Who ensures that there is proper scrutiny? I am concerned that the entire issue of covert operations, and the cloak-and-dagger operations that we have seen in the past, put us on dangerous ground.

I would have thought that this legislation was outside of the power of the Assembly, because it encroaches on the issue of security, over which we do not have any control. In examining how we shall implement the Regulation, we must have some sort of guarantee that the human rights legislation has been complied with, that there has been proper scrutiny and that we ensure that the Regulation, if passed by the Assembly, is properly monitored.

Photo of Mr James Leslie Mr James Leslie UUP

I thank Members for their contributions, and in particular, the Committee of the Centre for its support in introducing the Regulation. I shall deal with the points raised by Mr Molloy; however, as he almost acknowledged in his remarks, the points that he made are not relevant to this Regulation. We are regulating the activities of the devolved Administration. Seven of the 11 Departments can envisage that they might use powers covered by the Regulation. Other Departments could not see any circumstances in which they would.

The circumstances in which the Regulation would come into force are easy enough to imagine: the Social Security Agency may check suspected benefit fraud; the Department of Health, Social Services and Public Safety may check suspected prescription fraud; and in the field of environmental health, officers are engaged in surveillance of the supply of unfit meat. Those are the type of uses that it is envisaged the Regulation will cover. The Human Rights Commission was consulted but made no response.

The question of when a commission and a tribunal will be established will be examined as soon as possible. That tribunal will have relevant functions of monitoring and reviewing the use of the powers in the Orders and considering complaints about the use of those powers. If safeguards are required, they will be in addition to the normal avenues of legal challenge that are being made available.

I hope that I have assured the Assembly that the Order is neither a snooper’s charter nor the beginnings of a "Big Brother" state. Equally, it is not an impediment to the lawful, necessary and proportionate use of surveillance for the public good. It is a necessary step: a measure that will place surveillance on a proper statutory footing; a measure that will ensure proper controlled monitoring and review of the use of surveillance; and a measure that will facilitate the effective use of law enforcement for the good of society, while protecting the rights of the individual.

Question put and agreed to.

Resolved:

That the Regulation of Investigatory Powers Act 2000 (Amendment) Order (Northern Ireland) 2002 be affirmed.