Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2010

My Lords, this is one of five affirmative orders made under the Regulation of Investigatory Powers Act 2000 to which I shall be speaking this afternoon. The others—fascinatingly perhaps—are the Regulation of Investigatory Powers (Covert Surveillance and Property Interference: Code of Practice) Order 2010; the Regulation of Investigatory Powers (Extension of Authorisation Provisions: Legal Consultations) Order 2010; the Regulation of Investigatory Powers (Communications Data) Order 2010; and the Regulation of Investigatory Powers (Covert Human Intelligence Sources: Code of Practice) Order 2010. I shall also speak to the Motion in the name of the noble Baroness, Lady Hamwee, on a negative resolution order: the Regulation of Investigatory Powers (Covert Human Intelligence Sources: Matters Subject to Legal Privilege) Order 2010. Incidentally, to avoid confusion, I should say that the Motion on the Order Paper refers to the earlier order, SI 2009/3404, which was laid down in December 2009 but was subsequently withdrawn. The order that is now before the House is SI 2010/123, which was made in substitution for the earlier order. It makes sense to consider these orders together. Together, they implement the outcome of a public consultation on which public authorities should be included for certain statutory techniques and why they should be included. They provide extra safeguards and guidance, particularly for local authorities. They also fulfil our obligations following a number of independent, high-profile findings. It is important to remember the context of these orders. Investigation, including covert investigation and the use of communications data, is the cornerstone of the way in which many public authorities discharge their statutory responsibilities, whether preventing a terrorist atrocity, dismantling a drugs ring, locating a person lost at sea, prosecuting a rogue trader or tracing a company dumping hazardous waste. Public authorities need a variety of investigatory tools to do the sometimes very demanding jobs that the public and Parliament expect of them. Sometimes the only way that they can effectively discharge their responsibilities is to act covertly in a way that is likely to obtain private information. This need applies not just to the police and intelligence agencies but to virtually all public authorities that Parliament has made responsible for carrying out investigations. In these circumstances, there needs to be a legal framework for ensuring that these techniques are used compatibly with our right to privacy. It is crucial that this vehicle allows public authorities to do their jobs while protecting the wider freedoms that we all cherish. The legislation which provides this framework is the Regulation of Investigatory Powers Act 2000—for convenience’s sake, referred to as RIPA henceforth. RIPA did not create covert investigatory techniques—that point is often, perhaps, lost sight of—rather, it regulated them. Before RIPA, public authorities’ use of covert surveillance was largely unregulated. Now, the area is subject to careful regulation, including extensive safeguards. It is of course necessary to keep RIPA under review so that it remains up to date and fit for purpose. The orders before us today are an essential part of that process. They do a number of things. First, they consolidate previous orders setting out who, in which public authority, may authorise what and for what purpose, updating that as necessary. This follows an extensive review of all the public authorities in the RIPA framework, and a three-month public consultation in 2009. Secondly, they strengthen the overview of local authority use of RIPA. In addition to the consolidating orders which raise the authorising rank to at least director level, they require a member of the corporate leadership team—that is, a chief executive or a deputy chief executive—to be responsible for the standards of the authorising officers. They require that local councillors have an oversight role in planning and reviewing the way in which councils use RIPA. Thirdly, they make the tests of necessity and proportionality clearer. Revised statutory codes of practice require public authorities authorising covert techniques under RIPA to consider the seriousness of the offence, in addition to the prior requirement that they weigh up the benefits to the investigation. The codes give additional guidance on what constitutes private information. They provide illustrative examples for the RIPA authorising officer to consider, and make it clear that it is not appropriate to use covert techniques under RIPA to investigate, for example, dog-fouling offences or people who put their bins out a day early. Fourthly, the codes also reduce bureaucracy for the police and other public authorities. They provide greater clarity on when authorisations are not needed, thereby cutting the number of unnecessary RIPA authorisations. They facilitate the work of police collaborative units in line with the arrangements in the Policing and Crime Act 2009. This means that where chief officers have made a collaboration agreement, joint police units will need only one RIPA authorisation, rather than one from each chief officer in each force represented in the unit. This is in line with a recommendation in Sir Ronnie Flanagan’s Review of Policing. Fifthly, the codes and the related order on legal consultations strengthen the arrangements for the authorisation of covert surveillance in specific instances. For example, constituents’ communications with MPs on constituency business will be treated in the same way as other confidential material and will therefore be subject to a higher rank of authorising officer. This follows the report of Sir Christopher Rose into the electronic eavesdropping of conversations between Mr Babar Ahmad and Mr Sadiq Khan MP. The directed surveillance of legally privileged communications is treated as "intrusive" surveillance where the order applies. This requires the surveillance to be subject to prior approval by either a surveillance commissioner or the Secretary of State. This is in line with a recent House of Lords judgment and will enable the law enforcement and intelligence agencies to carry out covert surveillance of legal consultations in the relevant circumstances, but only with the approval of either the Chief Surveillance Commissioner when it is an issue of law enforcement or the Secretary of State when it is an issue for the intelligence agencies, and then only in the most exceptional circumstances as set out in the code. Finally, I shall deal with the negative resolution order, which relates to the Regulation of Investigatory Powers (Covert Human Intelligence Sources: Matters Subject to Legal Privilege) Order 2010. This order, like the one for covert surveillance, responds to the Lords’ appeal judgment, to which I referred earlier, in the case of McE in 2009 and puts in place an enhanced regime of prior approval for cases where an authorisation is granted for a covert human intelligence source to obtain legally privileged material. The judgment did not expressly mention covert human intelligence sources and therefore, on one view, the negative order goes narrowly further than the ratio of the judgment in McE. However, we believe that RIPA should take a consistent approach to this matter. If it is right to make subject to special considerations covert surveillance in places where legally privileged material is obtained—for example, by a hidden microphone—then it is right to extend the same considerations to instances where human sources are tasked with obtaining the same information. The practical effect of the negative order is to limit—to national security, serious crime and the economic well-being of the UK—the purposes for which covert human intelligence sources can be authorised under RIPA to obtain legally privileged material. It would also make such authorisation dependent on approval in every case by either a surveillance commissioner in the case of law enforcement or the Secretary of State in relation to the intelligence agencies. We believe that it is right to strengthen RIPA by raising the bar for this type of investigation. Without the extra safeguards provided by the order, any public authority listed under RIPA for authorising covert human intelligence sources may authorise their deployment for any of the purposes they are listed for and without approval from an independent surveillance commissioner or Secretary of State, which may be thought undesirable. I therefore beg to move the Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order, and I commend to your Lordships the various regulation of investigatory powers orders to which I have also spoken.