§ 5.34 p.m.
§ The Parliamentary Under-Secretary of State, Home Office (Lord Filkin)
rose to move, That the draft order laid before the House on 8th May be approved [29th Report from the Joint Committee].
The noble Lord said: My Lords, the order has 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 I shall refer to from now on as RIPA. Section 71(1) of RIPA requires the Secretary of State to issue codes of practice relating to the exercise and performance of powers and duties under RIPA. This code of practice relates particularly to the interception of communications, as set out in Part I, Chapter I of the Act, and not to access to communications data, which is covered separately in Part I, Chapter II of RIPA.
1543 The interception of communications code of practice relates to the exercise and performance of the powers and duties set out in Chapter I of Part I of RIPA in respect of the interception of communications. The code supports the Act by providing clear and unambiguous guidance on the lawful interception of communications in the United Kingdom. The code was welcomed in another place as providing helpful guidelines and more clarity about the interception provisions in the Act. I hope that it will receive similar support in your Lordships' House.
Section 72 of RIPA provides that any person exercising such powers or duties shall have regard to the provisions in such codes of practice. Section 71(3) requires all draft codes of practice issued under RIPA to be published and requires the Secretary of State to consider any representations made to him about the draft. Public consultation on the interception of communications code of practice lasted from 25th September 2000 to 17th November 2000. The results of the consultation have been made available on the Home Office website.
I shall say a few words about the policy background. The provisions in the Regulation of Investigatory Powers Act 2000 relating to the interception of communications replace those in the Interception of Communications Act 1985 to take account of two issues: first, the movement and development of new technologies, and secondly, Human Rights Act obligations. Importantly, they also provide for the first time for a statutory code of practice to be approved by Parliament.
The interception code of practice sets out how the provisions contained in Chapter I of Part I of RIPA regulate the interception of communications. It remains the case that the Secretary of State is required to issue a warrant authorising interception only for the purposes set out in the Act. Secondly, warrants may be applied for only by the security and intelligence services, the police, Customs and Excise or the Chief of Defence Intelligence.
The code sets out the procedures to be followed by agencies when applying for an interception warrant from the Secretary of State, as well as giving guidance to agencies and others on giving effect to warrants and the disclosure, copying and retention of material obtained through warranted interception. The code also sets out how, under RIPA, interception can lawfully take place without a warrant in specific circumstances, such as when there are reasonable grounds to believe that all parties have consented to an interception. Importantly, it provides guidance on the necessity and proportionality considerations that must be taken into account to ensure consistency with ECHR and Human Rights Act obligations. The code has the support of the law enforcement and intelligence and security services and, importantly, of the Interception of Communications Commissioner, who provides independent oversight of the process. I commend the order to the House.
1544 Moved, That the draft order laid before the House on 8th May be approved [29th Report from the Joint Committee].—(Lord Filkin.)
§ Baroness Anelay of St Johns
My Lords. I can be very brief. As always, I thank the Minister for his careful explanation, during the course of which he referred to the welcome given in another place. He carefully quoted the words of my honourable friend Dominic Grieve. I confirm that, in the spirit of joined-up opposition, I agree with my honourable friend. We welcome the making of the order.
It may be appropriate for me to make clear that the order is vastly different from the two RIP orders that were most recently withdrawn by Mr Blunkett, the Home Secretary. I had laid Motions against those orders in your Lordships' House. I recognise that this order is benign. I was grateful that the Government thought again on the other two and took a proper course of action.
§ Lord McNally
My Lords, perhaps I may also exercise joined-up opposition. In another place my colleague, Richard Allan, the Member for Sheffield Hallam, supported this order. I believe that Mr Allan must be among those best qualified to speak on high technology matters. He is a real computer and Internet "geek"—I am sure that he would not mind that description. I probably occupy the opposite end of the scale of understanding.
However, I have certain battle honours in this matter. I am glad to see the noble Lord, Lord Bassam, in his place. Together with the noble Lord, Lord Cope, the noble Lord, Lord Bassam, and I spent many happy hours going through the rather Orwellian-sounding RIP Bill to get it on to the statute book.
Perhaps I may also take a moment to welcome the noble Baroness, Lady Anelay, to her new role in taking on the Home Office brief. I left the Home Office brief for the joys of broadcasting and she moved in the opposite direction. I can only tell her that, from my own experience of four years with the Home Office brief, she has many interesting hours on that Bench ahead of her if I know Home Office legislation.
As to RIPA and the passage of the order tonight, I believe that the noble Baroness has put her finger on a matter of which the Government must now be well aware. During the passage of the Bill, concerns were expressed on all sides of the House about civil liberties and the constraints that needed to be put on the authorities in their use of powers.
I commend the initiative of the noble Baroness, Lady Anelay, in making clear that her side of the House would pray against the recent orders, as shall we. The Government must think very hard before they try to extend their powers under RIPA. We are going to test Ministers very hard on necessity and proportionality. Those were included in the Bill with great thought and they will be applied, particularly in this House, with great vigilance. I believe that it is a liberal—with a small "I"—but important principle 1545 that limits should be placed on the powers of the state; that is, limits on what the authorities are entitled to know about an individual.
I also accept that, as the Minister mentioned in introducing the order, the world has changed dramatically since 1985. RIPA is required both in terms of new technologies and, indeed, globalisation. Not only has the economy globalised; so have crime and terrorism. It is a matter of getting that balance right.
In terms of ministerial responsibility, the concern for proportionality in relation to the necessity of and respect for civil liberties does not fly out of the window with ministerial office. Ministers do not change sides when they take office. We hope that Ministers look at these matters with an eye to defending those principles. When Parliament gives the security services and other agencies of state the powers to intercept and to bug, it is very important that the political masters apply strong and stringent tests in defence of civil liberties. I hope that recent events have demonstrated that certainly on these Benches an acute examination will be made of any attempts to extend the powers, together with an examination of the justification for them.
As I am sure the noble Lord, Lord Bassam, will confirm, the Bill had a thorough going over in this House. The protections which appear in the Act, and which are reflected in this code of practice, were inserted for a very important reason—a reason relating to civil liberties and human rights, to which we all adhere.
§ 5.45 p.m.
§ Lord Filkin
My Lords, I thank both Opposition Benches for the way in which they have responded to the code. I also take on board with some anticipation the Gypsy's warning that they both offered in terms of the order that is not before us tonight. As noble Lords know, my right honourable friend the Home Secretary has signalled that we shall reflect and consult and then come back to the House. On that occasion I am sure that noble Lords will, indeed, give an acute examination of what we place before them.
I believe that the Act itself has been a good process. Thus far, it has been implemented in a thoughtful way because it seeks to do exactly what the noble Lord, Lord McNally, signalled. It recognises the reality of the threats to our society in terms of criminality and terrorism and yet, at the same time, it seeks to tread the very difficult tightrope of not being other than robust in protecting society while not abandoning the values that underpin why we believe that that society is worth protecting. I believe that the Act and this order do that neatly.
The Act has a code which, for the first time, sets out in extremely clear English language, which I found pleasurable to read, the principles on which public bodies must act and the principles against which they will be called to account.
1546 As the House knows, the Act also set up two mechanisms to ensure that it was not viewed simply as a piece of paper. The first related to a tribunal's investigatory powers to deal with complaints by individuals when they felt that they had been wrongly or inappropriately investigated. The second concerned the independence of the interception of the Communications Commissioner, who clearly has substantial powers to investigate what government are doing under the powers of the Act.
I believe that that threefold structure is a good one. We look forward to its implementation and, it is hoped, to the effective use of the powers to intercept criminals and terrorists in a way that respects the values to which we adhere.
§ Lord McNally
My Lords, before the Minister sits down, during the passage of the Bill one area caused concern. It was that economic well-being would be seen as a catch-all. I believe that the code removes that fear, but I wonder whether the Minister will comment on that.
§ Lord Filkin
My Lords, economic well-being is not an all-encompassing power. Clearly one could argue that economic well-being encompassed almost anything that happened in society. But economic wellbeing had to be related in some way to the issues contained in the Act—that is, the security of the state or criminality. I believe that Members in another place discussed BMW and what was happening in the West Midlands. Clearly, simply the fact that a company might change its ownership in no way touched on the security of the state, even if people had views about whether or not that was desirable. It had to be relevant to security or criminality.
On Question, Motion agreed to.
§ Lord Grocott
My Lords, as noble Lords know, the next Business is an important Unstarred Question on the Ministry of Defence Skill Force pilot schemes. I shall end my oratory at that point because my noble friend Lord Bach has arrived, with perfect timing.
§ The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Bach)
My Lords, before the noble Lord, Lord Freeman, rises to his feet, perhaps the House will permit my making a brief intervention. I am delighted that the House has not had to be adjourned. I apologise if I have caused difficulty. I was fortunate today to be invited to the Royal Jubilee Portsmouth Armed Forces ceremony from which I have just returned. I hope that that has not caused noble Lords any inconvenience. I am amazed at how expeditious the House has been today.
§ Baroness Anelay of St Johns
My Lords, as prior notice had been given that the sitting would be suspended until 6.30 p.m. to await the return of the Minister —that is not a criticism of the fact that the sitting would be suspended —my noble friend Lady Seccombe is not in her place and would not want to miss the opening speeches. I shall ask one of my 1547 colleagues behind me to go immediately to the Whips Office and ensure that she comes forthwith to hear the speeches.
§ Lord Grocott
My Lords, I beg to move that the House do now adjourn during pleasure until 6 p.m.
Moved accordingly, and, on Question, Motion agreed to.
§ [The Sitting was suspended from 5.52 to 6 p.m.]