Regulatory Enforcement and Sanctions Bill [HL]

moved Amendment No. 135: 135: Clause 40, page 16, line 43, at end insert— ““( ) For the avoidance of doubt, the steps to be taken by the regulator in order to be satisfied as required by subsection (2) shall, for the purposes of the Regulation of Investigatory Powers Act 2000 (c. 23), constitute the prevention or detection of crime as defined in that Act and sections 39 and 42(2) and (3) shall be construed accordingly.”” The noble Viscount said: I shall try to be as quick as I can, but this is a complicated point and, although I have given notice of it to the noble Lord, Lord Bach, other Members of the Committee might not be entirely familiar with it. Clauses 61 and 62, towards the end of the Bill, list offences for which a regulatory body, including a local authority, may decide to impose a civil sanction, and for which there will be guidance. I understand that all this will be done through the usual fleet of statutory instruments, so we do not know at the moment which sorts of enforcement procedures will be included. Individuals who trade—for instance, small farmers—will certainly be included. A local authority may well wish to use the powers in the Bill to use civil sanctions in a particular case in which it is allowed to do so under whatever guidance emerges. If it wants to accept an enforcement undertaking, for example—to save time, I will not go into stop notices for the moment—under Clause 40(2) it may do so only if it is satisfied to the criminal standard of proof that the person has committed an offence. The notional doorstep salesman, whom I mentioned before, can take a great deal of money from vulnerable individuals; one of the jobs of the trading standards department is to spot that this is going on and to do something about it. One of the ways in which the department can trace this activity is to use the closed circuit television system to watch the people going up the street. Under the Bill, members of the department will have to go across the street where there is a local authority dividing line down the middle; otherwise, they are not regulated persons. It is perfectly possible that they will do this. This is covert surveillance. The background to this is that when the Government introduced the Human Rights Act 1998, they did not incorporate the European Convention on Human Rights into English law, but they did require all public authorities to comply with it. There is nothing wrong with that; it is an excellent thing. The difficulty was that it was suddenly realised that Article 8 deals with privacy—private life in the convention, and private information in the transposition to British law. There has never been any law on privacy in any part of the United Kingdom, unlike the situation for most of our European neighbours, who have provisions on privacy. The Government therefore passed the Regulation of Investigatory Powers Act 2000. RIPA attempts to incorporate into English law the provisions of Article 8.2 of the convention. That article protects a public authority if it infringes privacy rights by means of, for example, covert surveillance, provided that it does so in accordance with a given procedure, which is taken directly from the article. The original version of RIPA included, in Sections 28 and 29, practically all the grounds on which a public authority could seek this protection. Those grounds are public health, public safety, crime and disorder and economic well-being of the country, as well as a few others, but not the protection of the rights and freedoms of others, which is provided for in the convention but not in the Act. In Scotland, to which this Bill also applies, a provision was passed by the Scottish Parliament equivalent to Part II of RIPA. It includes the grounds of prevention and detection of crime and disorder, public health and public safety. However, under the Scotland Act 1998, the entire European convention was incorporated into Scots law. Therefore, whatever is said in the Scottish equivalent of RIPA, people can use all the grounds under Article 8.2—including the protection of the rights and freedoms of others—as indeed they do, and those cases are upheld by the courts. In other words, the legislation is bypassed by the Scotland Act. In England, things went along all right until the Home Office decided that it would restrict the grounds on which public authorities could use covert surveillance. It did so through Statutory Instrument 2003/3171. The grounds that different public authorities can use vary, which I do not understand, but local authorities can now use only the ground of prevention of crime and disorder. Unless this ground can be conscientiously used, local authorities have no powers to carry out covert surveillance without forfeiting the protection that they are granted under RIPA. Conscientious authorising officers who grant the authority to carry out covert surveillance look to see whether the proposed action is in accordance with the permitted grounds. One of the problems that arose in the earliest stages of RIPA is what one does about employees of a public authority if they are, for example, malingering or taking second jobs. On the face of it, one would think that that was fraud and therefore a crime. However, there was a long dispute about that, as authorising officers said that it would not be treated as a crime but would be dealt with by disciplinary means. I know of one big police force that was unable to get authorisation for covert surveillance in order to back up disciplinary proceedings, because one can get authorisation only if one has evidence. Again, one has to be satisfied to a reasonable standard that a crime has been committed, so one needs to get an authorisation. This remained in limbo, as no one knew the answer, until the Investigatory Powers Tribunal was confronted with about 17 cases on what to do about covert surveillance for public authority employees. In one comparatively simple case, a police sergeant tripped over a mat in the police station. He said that he had hurt himself and he retired sick on a pension. Then he discovered that, as this had happened while he was on duty, he was entitled to an enhanced pension, which he claimed. The police authority did not believe a word of it and, when it went out with cameras and other methods of discovering what was going on, it found out that he was not sick at all; in fact, it was a complete fraud. The authority did not give him his enhanced pension and he complained. Under Part II of RIPA, only one body can deal with complaints: the Investigatory Powers Tribunal, set up by almost incomprehensible verbiage in Section 65 onwards. It has its own special rules of procedure. There is a perfectly good reason for that: it deals with some highly sensitive matters to do with national security and so it cannot allow the public to know all the details of everything that it does. However, that does not give the other side an opportunity to see what the case is against them, the tribunal does not deliver reasoned judgments and the rules are most unusual. The tribunal has ruled for itself that it will comply with the rules of a fair trial under Article 6 of the European convention. However, only the tribunal can make that judgment because nothing it does is susceptible to being appealed or judicially reviewed in any way. Therefore, the tribunal has to do this sort of thing as a form of internal housekeeping. The tribunal was confronted with the case of the police sergeant who complained that his pension had been withheld. It noted that it had an awful lot of similar cases and wanted to get to the bottom of the issue. I have promised the noble Lord that I would read out only a short part of the decision, but it is a very interesting one: "““A coherent RIPA scheme includes the special procedures for dealing with claims and complaints about the use of investigatory powers in performing the core public functions of the public authority. The special procedures are not required for and do not fit a case like this. The application of the special procedures for adjudicating on claims and for investigating complaints would mean that the applicant would be deprived, for no sensible reason, of the protection of ordinary procedures of an open adversarial hearing, of a reasoned decision and of the right of appeal against or judicial review of an unfavourable decision. It is improbable that Parliament ever contemplated that these restrictions would apply in a situation in which there is no sensitive information or intelligence, and in which no national security or other public interest considerations could arise””." The tribunal declined jurisdiction, saying that the case did not fall within Part II of RIPA, and went on to say that the proper ground for investigating what the police sergeant had done was a matter not of crime and disorder but of the economic well-being of the country. That expression, like, "““the protection of the rights and freedoms of others””," is a civil law expression; both are given a wide interpretation by the Strasbourg court and in this country as a result. The tribunal therefore declined jurisdiction and simply left it to the pension applicant and the police authority to go through other routes. My fear about the bits of this Bill about which we are talking, particularly the list in Clause 62 and the range of alternative civil sanctions, is that authorising officers in local authorities will say, ““Parliament has said quite clearly that this is not going to be treated as a crime. There is now a huge statutory instrument that lists all these things and so we will be able to use these civil sanctions instead. We have no powers to allow covert surveillance””. That being the case, there is no protection for the authority. I wish to make it entirely clear that on this occasion Parliament is alive to the issue, which it plainly was not when the statutory instrument was approved in 2003. We must make absolutely certain that the introduction of civil sanctions does not reduce the ability of a local authority to fulfil the test under Clause 40(2) whereby it has to be satisfied to the criminal standard of proof. This will not make it a crime, because, although basically a criminal offence is involved, it will be known, because of the guidance given under later parts of the Bill, that the criminal procedures will not apply. Therefore, there will be a great deal of confusion. I can tell the Committee that local authorities do not like to carry out covert surveillance unless they know that they have the protection of RIPA, because that means that they will have an answer to all problems, whereas it is impossible to know what an employment tribunal or some other court would say in other circumstances. My fear is that, unless we get this cleared up, local authorities will simply not use the enforcement powers that they have been given, or not the civil sanctions, anyway, because they will not know where they stand. I hope that the noble Lord understands that. I am afraid that it is terribly difficult to explain, but I have done my best. There needs to be a solution. I do not put forward my drafting as necessarily the right one; the amendment was tabled to raise the point, because the only ground left is the prevention and detection of crime and the prevention of disorder. If there is some other way of doing this, I shall be only too delighted. I should be very glad to see the demise of Statutory Instrument 2003/3171. I should also be very glad to see the introduction into English and Welsh law of the ground of the protection of the rights and freedoms of others, which is already in Scots law. I cannot see why there should be a difference. That means that the Home Office will have to change its mind but, after all, we have joined-up government. If the matter arises in the context of the noble Lord’s department and there is a problem that has to be resolved with the co-operation of the Home Office, I hope that that would not be beyond the wit of Ministers. Therefore, I place the amendment before the Committee as raising what I believe to be a serious difficulty about the Bill. I beg to move.