§ 12.58 p.m.
§ Lord Bassam of Brighton
rose to move, That the draft order laid before the House on 16 December 2004 be approved [5th Report from the Joint Committee].
The noble Lord said: My Lords, I wish to speak also to the final Motion in my name on the Order Paper.
The orders, laid before Parliament on 16 December, are made under the Regulation of Investigatory Powers Act 2000. I shall deal with both instruments.
The aim of these orders is to bring a small number of public authorities within the 2000 Act's strict control and oversight regime. This will mean that their requirements for acquiring communication data, conducting directed surveillance and using covert human intelligence sources or informants will have to be for a specific purpose, drawn directly from the European Convention on Human Rights; necessary for one of those purposes; proportionate to what is sought to be achieved, and authorised by an officer at a specific and senior level within the public authority.
The orders will enable some powers previously debated by Parliament to be used and will remove powers from those public authorities with no need to exercise them. The Regulation of Investigatory Powers (Communications Data) (Amendment) Order is made under Section 25(1), (2) and (3) and Section 78(5) of the 2000 Act. Communications data, such as telephone and Internet subscriber information, itemised billing records, and even mobile phone location data is a vital tool in the prevention and detection of crime. Communications data does not include the content of any communication. That is already tightly regulated by Part I, Chapter 1 of the 2000 Act.
The order provides powers to public authorities to acquire communications data under Part 2 of Chapter 1 of the 2000 Act, consistent with the powers and functions that they already have. This include new authorities: the Independent Police Complaints Commission; the Office of Communications, Ofcom—although Parliament considered and approved the requirement that the former Radiocommunications Agency had for detecting pirate broadcasters, which is now a function of Ofcom; and the Civil Nuclear Constabulary, which from April will replace the United Kingdom Atomic Energy Authority Constabulary. It also includes other long-established authorities with functions of a public nature: the ports police at Dover and Liverpool.
The order also provides that a senior civilian officer or seconded police officer within the Scottish Drug Enforcement Agency may authorise the acquisition of communications data. This brings the SDEA in line with the multi-agency arrangements for the National Criminal Intelligence Service and the National Crime Squad. Accreditation of officials who use these powers 510 ensures that they understand the legal and technical issues involved and provides the communications industry with a mechanism to authenticate those individuals placing disclosure requirements upon their businesses. The exercise of these powers is subject to oversight by the Interception of Communications Commissioner, Sir Swinton Thomas, who is obliged to keep under review and report to Parliament on the exercise and performance of powers and duties relating to the acquisition of communications data.
Anyone who thinks that their data has been wrongly acquired has the right to make a complaint to the Investigatory Powers Tribunal. If the commissioner were to establish that an individual had been adversely affected by any wilful or reckless failure by any person exercising or complying with the powers and duties under the Act in relation to the acquisition or disclosure of communications data, he will inform the affected individual of the existence of the tribunal and its role, and disclose sufficient information to the affected person to enable him or her effectively to engage the tribunal. All public authorities must follow the procedures set down in the draft code of practice on acquisition and disclosure of communications data, which explains the provisions in detail. This has been extensively revised, and it will shortly be subject to a further public consultation.
The Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order is made in exercise of the powers conferred by Section 30(1),(3),(5) and(6) and Section 78(5) of the 2000 Act. Part 2 of the Act provides a statutory framework regulating the conduct of covert surveillance and the use of covert human intelligence sources by public authorities. Directed surveillance does not include covert surveillance of anything taking place on any residential premises or in any private vehicle—that would constitute intrusive surveillance. This order does not confer any powers to any authority to conduct intrusive surveillance.
This order provides powers to new public authorities, and long-established authorities with public functions, to conduct directed surveillance and use covert human intelligence sources within a statutory framework, consistent with powers and functions that they already have. Again, this includes Ofcom, the new Civil Nuclear Constabulary and the ports police at Dover and Liverpool. Equally, the order removes powers from public authorities and officials that no longer require them: health authorities and officials of the transport security directorate of the Department for Transport.
The exercise of these powers is subject to independent oversight by the Chief Surveillance Commissioner, Sir Andrew Leggatt. Like the Interception Commissioner, he is obliged to keep under review and report to Parliament on the exercise and performance of powers and duties relating to the conduct of surveillance and use of covert human intelligence sources. Anyone who thinks they have wrongly been the subject of surveillance or their human rights have been infringed has the right to make a complaint to the Investigatory Powers Tribunal. Codes of practice on covert surveillance 511 and covert human intelligence sources have been approved by Parliament by affirmative resolution and set out the procedures to be followed under the Act to conduct directed surveillance or use a covert human intelligence source.
These draft orders represent a continuing process to ensure that public authorities carry out their lawful functions and activities in a regulated manner that protects individuals' rights of respect for their privacy. The orders are compatible with the rights set out in the European Convention on Human Rights, and they ensure that the acquisition of communications data, conduct of directed surveillance and the use of covert human intelligence sources can take place in a way where respect for human rights is explicit. I beg to move.
Moved, That the Regulation of Investigatory Powers (Communications Data) (Amendment) Order 2005 be approved [5th Report from the Joint Committee].—(Lord Bassam of Brighton.)
§ Lord Phillips of Sudbury
My Lords, I am grateful for the Minister's explanation of these difficult provisions, because there is little in our whole canon of legislation that is more complex than the Regulation of Investigatory Powers Act, as the noble Lord will recollect from our demanding debates when that legislation was passed. He will recollect that he rightly drew attention to the remedy of a citizen aggrieved by the use of powers under RIPA being justiciable at the behest of the Interception of Communications Commissioner. Initially, the commissioner was not even required to tell a citizen whose information had been improperly purloined that there had been that impropriety. At least we got that change made to the legislation.
I have two questions on the orders. First, I note that Ofcom is one of the new authorities authorised by the two orders, but I also note that the level of authorisation required of Ofcom is higher in the case of the directed surveillance and covert human intelligence sources order than under the communications data amendment order. Why is that the case? Secondly, what sort of training, authorisation, oversight and discipline applies to the special constables of Dover Harbour Board and the constables of the Mersey Docks and Harbour Company? Can the House be assured that those who will have these important powers are under due control and subject to the right level of training?
§ Lord Goodhart
My Lords, I am grateful to my noble friend Lord Phillips of Sudbury. As will be obvious, we are not opposing these orders, but my noble friend has raised questions that require answers. Beyond that, I have nothing to add to what he has already said.
§ The Earl of Erroll
My Lords, I welcome the tightening up of the list of bodies which now have rights under RIPA. At first, I was a bit worried that every time we had name changes in statutory bodies we 512 would have to come back with an affirmative instrument in Parliament, but I understand that is not the case. Fortunately, they just happened to be bundled with this because some other changes that did require an affirmative instrument.
There is one thing that we will need to think about in the future. I have heard that many other bodies, not all government statutory bodies, are banging on the door hoping to get rights as well, to try to look out for other things such as rigging the results of competitions. What worries me about RIPA in the whole is the self-authorisation aspect. Perhaps one should have some mechanism whereby such bodies could get the data, but are not authorised for self-authorisation under RIPA and have to go via the police or some other suitable body.
I very much look forward to seeing the new draft code of practice, which I understand will come out in the near future.
§ Lord Bassam of Brighton
My Lords, I am grateful to the noble Earl and the noble Lord, Lord Goodhart, for their comments. I shall try to respond to the points made by the noble Lord, Lord Phillips; I am grateful, as he probably gave us some early indication of at least one of the questions that he was going to ask.
The noble Lord, Lord Phillips, asked about the training and oversight of port police officers and Ofcom. In respect of the acquisition of communications data and the conduct of surveillance, the training will be pretty much exactly the same as that given to Home Office police forces generally. Those involved in the work will attend training courses that are properly accredited by the Association of Chief Police Officers. All acquisition of communications data and conduct of surveillance is subject to the oversight of the commissioner.
Dover and Liverpool are the only port forces that have special investigative branches, and both are headed by a senior former detective superintendent. All those working in those departments are ex-police officers, so they have already received a lot of the training that will he necessary. So far as I can see, most have taken additional training from within the home forces. Having met some of the officers, although not recently, I can say that they are properly trained and understand exactly what they are doing and the nature of the work. They operate in a very discreet way and have a full understanding of the framework of the law. We should be very confident about how they operate.
The noble Lord, Lord Phillips, asked a further question about the higher authority of Ofcom. Ofcom is in the communications data order because it can access very sensitive communications material. As a consequence, it has offered itself up for self-regulation by seeking to have itself included in the higher authority for that communications work. I feel somewhat reassured by that myself, because Ofcom recognises that it requires that higher authority. I trust that that answers his questions.
On Question, Motion agreed to.