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

My Lords, I thank the Minister for explaining the five orders. These orders follow a Home Office consultation that, among other things, was designed to assist the Government in reviewing the public authorities able to authorise the use of communications data, covert surveillance and covert human intelligence sources under RIPA and to allow the Government to provide better guidance on the use of powers available under the Act. As the Joint Committee on Statutory Instruments noted, the draft orders relating to directed surveillance and covert human intelligence sources and to communications data make substantive changes to the RIPA framework. These two areas and the related codes of practice will, therefore, be the focus of my response. We on these Benches will not oppose the orders, as they go some way towards what we want to achieve, which is a reduction in the number of public bodies able to authorise the use of surveillance techniques, covert sources and access to communications data, as well as the purposes for them of doing so. However, we do not believe that these consolidation orders have gone far enough. We think that the Government should be taking more of a lead in this area. They are instead, I fear, using the outcome of an inherently limited public consultation to justify quite little action. We welcome what they have decided to do but we think that they should go considerably further. As many noble Lords will be aware, in relation to the use of directed surveillance and covert human intelligence, the Chief Surveillance Commissioner has said that there has been, ""a serious misunderstanding of the concept of proportionality"." The Home Office itself acknowledges: ""Recourse to covert techniques under RIPA should be considered only when it has reasonably been concluded that these other tactics would not be appropriate; but it is clear that, in some instances, these other tactics have been ruled out too quickly and RIPA has been a first, rather than a last, resort"." That is a Home Office statement and needs, obviously, to be taken rather seriously. Here one thinks, in particular, of the uses that some local authorities have made of surveillance and other covert powers under the Act. Perhaps it is the wide drafting of Section 29(3) of RIPA—in particular, condition (g), which allows the Secretary of State to authorise the use of such powers for any purposes that he sees fit—that encourages this broad interpretation. The question obviously is: what limits are now placed on the interpretation of this section? We are all aware that the burden for enforcement of certain pieces of legislation has gradually shifted from the police to various public bodies, including local authorities. The Government have always maintained that the use of covert techniques in relation to such investigations was subject to the test of necessity and proportionality—a point that the Minister underlined. The revised codes of practice are meant to give additional guidance on this, as the tests have clearly not been applied adequately to date. Therefore, guidance becomes very important. What can the Minister say on whether and how an authorising officer is meant to demonstrate that he has considered whether the information sought could be reasonably obtained by other non-covert means? What, in other words, are the tests? How is he meant to demonstrate the benefits of information to the investigation before acquiring it? Can the Minister also confirm that the Government have now added a third test to the use of the powers under Part 1 of RIPA, which is the requirement for authorising officers to consider the seriousness of the offence being investigated? This seems to me to be part of the test of reasonableness and proportionality. Is there not also a more fundamental point? If the offences that public bodies are required to investigate are defined in statute, should not the Government be able to introduce stricter guidance on the offences that covert techniques can be applied to? It seems to me there is still too much vagueness in this area. The orders seem to show that the Government have gone down this route, but only to a limited extent. For example, the Department for Work and Pensions, the Postal Services Commission and the Royal Mail have been stripped of their powers to authorise the use of covert intelligence sources, but they retain powers in relation to directed surveillance. The Government have also decided to remove HMRC’s power to authorise directed surveillance to ensure the UK’s economic well-being. However, the Explanatory Notes to these orders do not provide enough detail to explain the basis for these decisions. Have the functions of these organisations changed significantly over recent years to justify this or were they granted too many powers in the first place? Nor do the Explanatory Notes contain enough detail for this House to judge the appropriateness of the different bodies even having such powers. Similar questions can be raised about access to and use by local authorities and some other public bodies of communications data. The Government have explained what they call the "business need" for the Northern Ireland Prison Service, the Department of the Environment in Northern Ireland and the Child Maintenance and Enforcement Commission to have access to communications data, as well as for the Department for Transport accident investigation branches, the Independent Police Complaints Commission and the Prison Service to have still wider powers of access. But why have the Government not explained in greater detail why other bodies have been allowed to retain these powers? This is a selective list and a selective approach. Can the Minister also say what input the independent oversight commissioners have had into the Government’s decision to add or remove powers through these orders? He mentioned the function of those gentlemen. In another place, the Minister with responsibility for policing, crime and counterterrorism said that the Interception of Communications Commissioner agreed that access by the Child Maintenance and Enforcement Commission to communications data was proportionate, but could the noble and learned Lord tell us the commissioner’s view of the other changes that we are debating today and of the retention by other bodies of their existing powers? Did the surveillance commissioners input into the proposed changes under Part 1 of RIPA? It would be helpful to know how much of a role the commissioner was able to play. It is strange that, in relation to very intrusive enforcement and investigation powers, the Government seem to equate the functions of different bodies. HMRC has lost the power to authorise directed surveillance to protect the economy, yet local authorities retain it for unspecified purposes. This is the crux of the matter: how are we able to judge the appropriateness of different bodies being entitled to such powers? The criteria do not seem to be available. We on these Benches have made clear our position, which is that the use of RIPA powers by local authorities should be restricted to investigations concerning serious criminal offences—in other words, those offences that could be subject to a custodial sentence. We have called for greater democratic and judicial responsibility for and oversight of the use of these powers by local authorities. We also want to see magistrates issuing a warrant for the use of RIPA and for requests, having been approved by a council officer, to be signed off by the council leader. We want to go pretty high. In contrast, the Government’s proposal is to raise the rank of authorising officers in local authorities to at least director level, as the Minister mentioned. The Government argue that involving council leaders in authorising RIPA powers could politicise investigations, although the Minister in another place left open the possibility that it would be feasible and practical for representations to be made to change that. Does the Minister agree with the availability of this option? It would certainly be an advance on the revised codes of practice, which allow elected members to review their local authority’s policy for the use of RIPA at least once a year and to consider reports on its use every quarter. This would be a welcome innovation. The Government also argue that involving magistrates could slow down the process to the detriment of investigations. Can the Minister explain this, as presumably local authorities do not tend to investigate risk-to-life cases? If the case is not a risk-to-life one, what is the problem about seeking the authority of a magistrate? I mentioned that part of the rationale underpinning the revised codes of practice is to provide clearer guidance on the tests to be applied for using RIPA powers. As I said, greater guidance should be given on when powers should be used in relation to different offences. What progress has been made on producing a tailor-made guidance manual in conjunction with the Local Government Association and the Local Authorities Co-ordinators of Regulatory Services? I am sure that the Minister will agree that, whatever guidance is in place, training is also crucial to the proportionate use of RIPA. There has been considerable concern to date about the training given to local authority employees involved in applying for and accessing communications data. The Interception of Communications Commissioner’s most recent report stated that local authority employees did not have the same training as their counterparts in other public bodies and were therefore unable to obtain the best possible compliance with the code of practice. What training have local authority employees previously received and what are the intentions for the future? What accredited training packages are now in place following the consultation and how many individuals have been through them? Under the revised codes of practice, the Government also want corporate leadership teams to ensure that authorising officers fulfil and maintain appropriate standards, as required by the Office of Surveillance Commissioners in relation to Part 1 of RIPA. It would be helpful if the Minister could say what progress has been made in ensuring that each local authority appoints a single officer to ensure compliance with minimum standards as set out by the relevant commissioners. The two issues of training and authorisation are related. Finally, what sanctions are available in relation to the misuse of RIPA powers? We know that factual errors are reported annually by the commissioners. The Minister in another place also said that the frequency and intensity of statutory inspections on the organisations concerned will be increased. How will that be achieved given the strained resource environment and scale of authorisations, which remains considerable? What sanctions can be applied by those oversight bodies? We will not oppose these orders as they go some way towards what is needed—and what the Government have not provided—which is a fundamental assessment of the appropriate use by public authorities of the different powers available under RIPA. These reforms are not in place today and will need further consideration in due course, but it would be helpful if the Minister could address a few of the more important points that I raised. Why have the Government not been able to introduce stricter guidance on which offences are suitable for the application of covert techniques? How are authorising officers able to demonstrate that the tests of proportionality, reasonableness and seriousness have been met? What input have the independent oversight commissioners had into the Government’s decision to add or remove powers through these orders, and what accredited training is now in place before appropriate individuals can authorise and use these powers?