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

My Lords, our objections to the extent of the powers stem, to a very large extent, from the underlying legislation, so it is difficult to direct my remarks narrowly to the orders when I should like to say that we might not have started from here. Coming, as I am, as a new reader to these issues—in detail, in any event—what strikes me is that so many of the demarcation lines are grey, or at least it is difficult to be precise about them. The codes that are the subject of two of the orders and which have great weight under Section 72 of the Act—the noble and learned Lord has just referred to this—frequently use terms such as "not normally", "an individual is advised", "such and such should be considered". To pick up one of the points made by the noble Baroness on training, the amount and the depth of training which must be required to implement these measures seems to me very considerable. I wonder how effective it can be. We are troubled by the extension of the right to use these powers. I think that originally nine organisations had the right to use them; now, many hundreds do. This month, the Child Maintenance and Enforcement Commission will be given powers, including the power to use covert human intelligence sources. The list of organisations—admittedly, they have very important functions—now able to take their own decisions about purposes which entitle them to seek authorisation for surveillance seems to us very wide. One of the purposes concerns the interests of economic well-being. That is particularly wide and is, I suggest, a matter of subjective judgment. Is it appropriate that many of these organisations should be required to go via the police in order to undertake surveillance? This was very much the theme of much of what the noble Baroness has just said. We are told that the port of Dover—I think I learnt this from reading the debate in the Commons—has accepted that that would be the right mechanism, and it is coming out of the regime. It is difficult to understand why others are not doing so. I mentioned the Child Maintenance and Enforcement Commission. We are told in the Explanatory Memorandum to the relevant order that it, ""will use directed surveillance in connection with criminal investigations"." Are criminal investigations not a matter for the police? As I have said, it seems to me that many of the judgments that have to be made are subjective as well as difficult. The Merits of Statutory Instruments Committee raised the point in its questions to the Home Office, stating, ""The Government position is that covert investigation under RIPA should only be used when other reasonable options have been considered and ruled out, and the revised codes emphasise this point. Why hasn’t this requirement been put in legislation rather than the code?"." The Home Office response was to point to new guidance being developed to help local authorities weigh the matter up in this case, and to say: ""You are right, therefore, to suggest that in the case of directed surveillance this is a matter of guidance rather than law"." These are serious matters, and it troubles me that guidance, rather than law, is what is relied on. This takes me to my central concern: that there is no judicial oversight of the exercise of powers, no external control or judgment before the event. Where there is urgency, out-of-hours judges or magistrates could be used. That matter troubled the House in a different context not very long ago when we were debating warrants to access property. If the answer is workload, that in itself raises worrying questions. What we have here is self-authorisation by the agencies concerned. Will the Minister reassure us that officers who start to consider the use of surveillance powers are uniformly such paragons that they will rein in their natural human ambition to get what might be called "a result"? The draft code of practice on covert surveillance and property interference says that, ""Authorising officers should not normally be responsible for authorising operations in which they are directly involved, although it is recognised that this may sometimes be unavoidable, especially in the case of small organisations, or where it is necessary to act urgently or for security reasons"." It seems to me that there must be question marks as to whether that should often or ever be the case, because it is so important that the perception of a conflict of interest is avoided, as well as the reality of any conflict of interest. This is particularly important when a fine judgment is required as to, for instance, whether there would be disproportionate interference with private and family life. As for urgent cases involving intrusive surveillance, again, the code states that, ""a case is not normally to be regarded as urgent unless"" an authorising officer is not available. There is certainly the caveat that when an agency has brought it on itself by not having somebody available, it should not be able to take advantage of that situation. The monitoring of this must be extraordinarily difficult. I hope that the Minister will expand on how one can ensure that proprieties are observed. There seems to be inherent fault lines so that it will never be possible to say how the codes deal with proportionality or whether they deal with them adequately. The examples in the codes are not overly helpful. They go very much along the lines of on the one hand and on the other, but I will not take up your Lordships’ time by reading them. Examples of particular circumstances are explained. In one case we are told that surveillance is unlikely to be necessary or proportionate, but maybe that will not be the case. That language is used throughout the examples. I acknowledge that there are many improvements and some tightening up, but it is appropriate to focus on the concerns. Some of the tightening up puzzles me. Why remove the ability of the Food Standards Agency to use public safety as its purpose? I might have questioned that with regard to some other agencies, but the Food Standards Agency should have public safety absolutely in its focus. What are the safeguards against the pre-emptive use of surveillance for legitimate, democratic process? I have referred to the orders which require an affirmative resolution. We have the negative orders as well. I apologise to the House that my Motion referred to an order which had been withdrawn. However, the fact that it is on the Order Paper probably indicates that I was not the only person who was confused about this—otherwise, knowing how eagle-eyed the House authorities are, it would not be there. The Motion is there because it goes against every fibre of my being that communication between a client and his lawyer could be the subject of surveillance. I acknowledge what I think was called the enhanced regime for authorisation. I appreciate that privilege does not extend to communications which are in furtherance of a criminal purpose. But to allow the Prison Service to listen in, not knowing whether something is in furtherance of a criminal purpose until quite a lot of the discussion has been listened to, offends me. Within this segment of the rules, we have the wide criterion of necessity in the interests of the economic well-being of the UK. It is possible to cancel authorisations. What monitoring is there of authorisations and cancellations? The temptation must be to leave authorisations in effect. When I saw the order in rather a hurry just before the Recess and I put down my Motion, I confess that I was so naïve that I had not appreciated that this was not new. Nevertheless, I wanted to use the opportunity to express—I will put it very temperately—my distaste at the situation. The Minister has said that if it is right to obtain information by microphone, it is the same through an individual. I question the basic premise of that. It was clearly sensible to debate the affirmative and negative orders in tandem. I will not seek to divide the House, which I do not think would take us a great deal further. But I will end by saying that with the affirmative orders we have a good deal of consolidation, but we need considerably more with consistent explanation of the criteria.