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

My Lords, I am grateful for the extent of the debate on this point. It has covered a matter of considerable constitutional importance. All the proposals here, however, concern public authorities acting in ways that are covert and they plainly need careful consideration. The Government recognise and fully support the principle that any public authority interference with someone’s right to privacy must be sanctioned only when necessary and proportionate with regard to human rights. That is precisely what Parliament passed RIPA to do. This is the right balance between effective discharge of the tasks faced by public authorities in this area and the protection of individual freedoms and the right to privacy. The points made by the noble Baroness, Lady Neville-Jones, were manifold and I will seek to deal with these. I first acknowledge that she welcomed these orders as a step forward, although she felt that matters should go further. However, I am grateful for the recognition of, and welcome for, the improvement that the statutory instruments produce. The points that have been adduced are as follows. It is said that there is a serious misunderstanding of proportionality and that, in certain cases, local authorities make too early a resort to RIPA. It is because one identifies that as an issue that the codes of practice have been brought forward to make it clearer to local authorities where the balance must lie. It is also in that context that training manuals have been produced to improve the understanding of local authorities. On the notion that Section 29(3)(g) of RIPA is too vague, the provision has none the less been employed without successful challenge to its lawfulness on human rights grounds. On the provisions requiring necessity and proportionality, the tests are precisely what they say they are. Where necessity is required, it is because there may be alternative ways in which to acquire the relevant information but the covert method has been ascertained to be necessary in the particular circumstance. The addition of seriousness perhaps indicates the way in which the Government have recognised that there requires to be greater clarification and tightening of the way in which these powers may be deployed by local authorities. The question is put of how the assessment of proportionality may be made when one is unaware of what the covert surveillance may recover. This is always a paradox; it is not new. It is perhaps identified in McE by the noble and learned Lord, Lord Neuberger, but he makes it quite clear, none the less, that that does not found a challenge to the lawfulness of the way in which RIPA operates. The varying of the utilisation of powers by bodies such as the MoD and HMRC is in response to the way in which those bodies have experienced the requirement for the use of RIPA. I make it clear that the powers that are contained within RIPA are not in any substantial or negligible way increased. The powers remain; they are simply being put within a legal framework that makes them ECHR-compatible. Questions are made about the extent of serious criminal offences and their definition, but if the definition proposed is that one should test the offence by reference to custodial sentence, that creates a very wide notion of what a serious criminal offence would be and goes against the definition contained in Section 81 of RIPA. Plainly, there is nothing that one can do in statutory instruments to alter the terms of the primary legislation. Certain areas, which the noble Baroness identified, are essentially differences of policy. The Government would be against the notion that council leaders should be involved as it would appear to introduce a politicised element into covert surveillance, which might be thought in many quarters to be undesirable. The notion that magistrates should be used at each stage again is a policy choice which the Government have not seen fit to follow. Certainly it is not required to establish the lawfulness of the RIPA structure. In relation to questions of guidance and training, I am told that good progress is being made on producing a tailor-made instruction manual for local authorities in their use of directed surveillance. I am afraid that I cannot give precise detail as to what that "good progress" might be. I gather that the development of accredited training is also proceeding apace. We are working with the Local Government Association group to develop these measures. As regards sanctions for local authority authorising officers who make decisions that are not absolutely right, the process has been that supervision is deployed to assess whether or not this power is used correctly. One has used the process of the commissioners and their reporting as an appropriate way in which to provide not only a broad sanction as to what may be done, but a means of achieving useful outcomes rather than pushing matters into a blame culture or into contest in court. The noble and learned Lord, Lord Lloyd of Berwick, raised a very important issue in relation to the way in which McE had developed. It has been implied in a number of quarters that in some way the Government have sought to ignore the Divisional Court’s decision; that they proceeded apace and that they acted unlawfully or have countenanced acting unlawfully. This I also understood to lie behind a lot of the points made by the noble Lord, Lord Pannick. The Government have not in any shape or form simply ignored the Divisional Court’s decision. In fact, the position as it is understood is that no such operations were carried out by the police or the Prison Service after the Divisional Court’s decision. Following the judgment in November 2007, guidance was issued to the police and Prison Service that sought specifically to address the concern identified by the court regarding the safeguards in relation to directed surveillance of legal consultations. That guidance was provided pending the appeal. The appeal has obviously produced the result that it has. During the appeal, counsel indicated that the Government were intending to bring about changes in relation to the way in which these issues were dealt with. I hope that provides some reassurance at least that the Government have not cavalierly disregarded the Divisional Court’s decision, which of course would be a serious matter.