Regulatory Enforcement and Sanctions Bill [HL]

The Committee will be very grateful to the noble Viscount—the Government certainly are—for raising this important issue and for the way in which he has put the case not just in Committee today but when Professor Macrory came to visit us, in his Second Reading speech and privately. It is an important issue. I am of course aware that my noble friend Lord Jones of Birmingham wrote to the noble Viscount on the matter after Second Reading; that letter has been placed in the Library. I do not know whether the noble Viscount found his response helpful; he clearly did not find it definitive. We understand the noble Viscount’s reason for wanting to make absolutely clear that, where surveillance is necessary for the purpose of preventing and detecting crime and is authorised appropriately under RIPA, such surveillance may be undertaken even when the new civil sanctions are being considered alongside the criminal sanctions. RIPA—here I speak in shorthand and, albeit in not such a sophisticated way, put the point that the noble Viscount made in moving his amendment—provides a framework for the authorisation of investigative methods, including conduct of covert surveillance and the use of informants where they are necessary and proportionate to achieve a legitimate aim. As the noble Viscount said, we must ensure that proper respect is given to any interference with individuals’ human rights. Regulators have to obtain an authorisation to use these methods in their investigations when they are likely to interfere with convention rights. That authorisation must be for a specified purpose within RIPA—as we understand it, a purpose such as the prevention or detection of crime, the interests of public safety and the interests of protecting public health. Most regulators are, frankly, as the noble Viscount stressed, restricted by order to authorising only conduct necessary for the purpose of preventing and detecting crime. However, where an authorisation is necessary for the prevention or detection of crime and the conduct to be authorised is proportionate to what is sought by carrying it out, the regulator may of course seek that authorisation even though an outcome of that criminal investigation might be the imposition of a civil sanction. Let me put that in a different way. The conduct and powers that may be authorised and exercised under RIPA can be used for an investigation of a criminal offence within the scope of the Bill, regardless of whether the ultimate sanction is criminal or civil. The regulators are looking at a criminal offence. It may turn out to be dealt with either in the criminal courts—as we think happens a little too often now—or by a penalty that involves civil sanctions, but it still remains an offence; it is still a crime that is on the statute book. That is on the basis that such conduct and powers are in accordance with the purpose for which the authorisation was given. In the case of regulators covered by the Bill, the most relevant purpose will be the prevention or detection of crime because so many of the regulations that are breached—the ones we are talking about here—are all, in their own way, criminal offences. I am advised that other purposes, such as the interests of public safety, may be relevant for some regulators such as the Environment Agency. Whatever the purpose, any interference with an individual’s rights must not be undertaken without proper assessment of whether it is legitimately in pursuit of that purpose. The noble Viscount makes the point that councils are prevented from getting authorisation for covert surveillance when, for example, the matter in question is disciplinary proceedings, because of the civil sanctions that would arise from that. While RIPA can be used only for the prevention or detection of crime, I am advised that it is broadly interpreted. The fact that the sanction is civil does not, as I have attempted to argue, remove the criminal nature of the offence. The Government are therefore confident that local authorities can rely on RIPA in those circumstances. The noble Viscount will know better than I that the Home Office is currently revisiting and consolidating all the RIPA orders for surveillance activity. I assure him that we will consider, as part of the review, the important point that he has made so eloquently to the Committee today. He himself says that the wording that he has used in the amendment may not be perfect drafting. I fear that it goes a little further than that: it could be misinterpreted as giving a kind of blanket authorisation to regulators to use these investigatory methods in every investigation that they conduct without making the proper considerations that are rightly required by RIPA and which the noble Viscount expects to see when exercising his responsibility to oversee public authorities’ RIPA authorisations in his distinguished role as an assistant surveillance commissioner. If there is a danger of misinterpretation, that would not be desirable. That is why we cannot accept the amendment, but I want the noble Viscount to know that the Government as a whole, for whom I answer, are looking at how RIPA works in terms of surveillance activity. Although I cannot fully answer his point today to his satisfaction, the point that he has raised will be considered as part of our process.