The Earl of Erroll
My Lords, I support the noble Lord, Lord Phillips of Sudbury. I well remember RIPA going through and your Lordships did not like it. As a result, very unusually, we tabled an amendment to the regulations that went through. This is symptomatic of some problems and an opportunity to tidy up some of these things. I remember that one of the key points that a lot of us did not like was the lack of external checks. There were too many internal authorisations allowing things to be done which could have some quite severe consequences on personal privacy of the citizens of this country. We should do what we can to tighten that up. I have to admit that I have not looked at any of this in detail, but I trust the noble Lord, Lord Phillips, to have probably got this one right.
The Minister of State, Home Office (Lord Henley)
My Lords, I think I can intervene now. I apologise if I digress to mention metal thefts, civil partnerships or intercepts as evidence, but even by a quarter past two it has already been something of a long day. My noble friend Lady Hamwee talked about the need for hot towels to understand what is going on behind some of the amendments tabled by my noble friend Lord Phillips. I am grateful to discover that it will be hot towels only for my noble and Liberal friends, so I shall get on with an explanation of what I think my noble friend Lord Phillips is getting at in his amendments and what the Government’s response is. That should be useful to noble Lords. What I think these amendments laudably seek to do is provide a degree of clarity in what is obviously a complex area, but I hope I can persuade him that the existing drafting of Clause 37 and of Sections 22 and 23 of RIPA is appropriate.
Lord Henley
I was just about to get on to Amendments 116 and 119. I think my noble friend accidentally referred to Amendment 116 as Amendment 115. For the sake of the record, I will put that right.
It might help if I first explain the differences between authorisations and notices. Sections 22(3), (3B) and (3F) refer to authorisations. These allow a designated person in a public authority to authorise another person in that authority to take steps to obtain communications data. This will be relevant where the authority rather than the service provider needs to take those steps. Section 22(4) refers to notices. This relates to notices given to a service provider directly. In seeking to redraft subsections (1) and (3) of new Section 23A of RIPA, these amendments are no doubt designed to make it clear that the requirement for magistrate approval applies to the renewals of authorisation notices to obtain communications data as well as their original grant. This is fully the intent of the clause. However, we believe that the text as drafted is correct in law on this point. Section 22 of RIPA applies to renewal, not Section 23—as provided for by the proposed amendment. Where a designated person seeks to grant or renew an authorisation, they do so under Section 22. Section 23 does not provide a separate basis for renewal. It merely makes provision about the form of an authorisation or notice and its duration.
It is, of course, right that Sections 23(5) and (6) refer expressly to renewal but the effect of the provisions is to ensure two things. First, they will make it clear that, where a designated person for a public authority intends to renew an authorisation under Section 22, they can do so at any time before the expiry of the authorisation—which will last for one month. Secondly, it will mean that, where the authorisation is renewed, the requirements of Section 23 in relation to the form of that authorisation are complied with. Sections 23(5) and (6) do not provide a basis for renewal and the clause as currently drafted, which refers to the granting and renewing of an authorisation under Section 22, is correct.
Amendments 117 and 118 seek to omit the words in brackets in new Section 32A(2) of RIPA. On the proposed omission of “if any”, these words cater for the fact that a local authority application for a notice or authorisation to obtain communications data may be refused. This is not merely a rubber-stamping exercise. That is an important point and it is brought out expressly by the drafting of the clause. On the proposed omission of “as the case may be”, these words make it clear that the provisions apply both to notices and authorisations to obtain communications data. We hope that it is a helpful steer to the reader. RIPA has sometimes been accused of being complicated and impenetrable—my noble friend said something similar. The drafting provides clarity on that.
Finally, Amendment 122 seeks to amend Sections 22 and 23 of RIPA, which relate to obtaining and disclosing communications data and the form and duration of authorisations.
The addition of the word “reasonably” into subsections (1) and (5) of Section 22 is not required and could cause confusion elsewhere. Reasonableness is already implicit within RIPA because it is expressly inherent in the Article 8 test of necessity and proportionality. Making an explicit reference to reasonableness in the context of Section 22 would cast doubt as to the test to be applied elsewhere in RIPA, where there are similar formulations.
Lord Phillips of Sudbury
My Lords, I am grateful for the Minister’s reply. I let his officials have a copy of what I was going to say an hour or so in advance of this Committee so that it was not a complete surprise to them all. I shall need a little time to absorb the response. I have to be frank and say that on a number of issues, at first flush, I was not convinced. But the best way forward, if the Minister agrees, is that we have a conflab outside this Chamber on any points that have residual concern. I was not intending to divide the House at this stage in any event but no doubt he will afford me access to his Bill team so that we can sort anything out if it needs it.
Lord Henley
My Lords, it would be right that we should sit down and discuss this, and I would welcome a chance to arrange a meeting with my noble friend. It is technical and difficult stuff. My noble friend Lady Hamwee referred to it as hot-towel-around-the-head stuff. I think it might be almost more cold-towel-and-a-lot-of-black-coffee stuff. But whatever happens, we have to discuss it and we will certainly try to do so.
Lord Phillips of Sudbury
I am grateful to the Minister, although I would prefer whisky. I certainly accept what he said and I beg leave to withdraw the amendment.
Lord Rosser
My Lords, this amendment is a response to calls from both the Director of Public Prosecutions and the former Assistant Commissioner of the Metropolitan Police to clarify the law in respect of the illegal interception of voicemail messages. The amendment seeks to clarify the definition of interception in the context of Section 1 of RIPA to mean that those who access the voicemail of individuals without their knowledge or consent will be liable to prosecution, even if the intended recipient has already accessed the messages.
In his evidence to the Select Committee on Culture, Media and Sport on 24 March this year, the then acting Assistant Commissioner of the Metropolitan Police, John Yates, stated that the reason he had initially advised the committee in September 2010 that only 10 to 12 victims could have cases brought for them in relation to alleged phone hacking was the,
“very prescriptive definition of Section 1 of the Regulation of Investigatory Powers Act”,
which deals with the illegal interception of voicemail messages. Of course, we now know that there are potentially thousands of cases where voicemail messages have been accessed and listened to without authorisation. However, to prove the offence of interception under the section, Mr Yates maintained that the prosecution had to show that a voicemail message had been intercepted prior to it being listened to by the intended recipient. In response to the evidence given by Mr Yates, the Director of Public Prosecutions wrote to the Select Committee on Culture, Media and Sport in April of this year to clarify the opinion of the Crown Prosecution Service on this issue. He told the committee that in 2006 in relation to the investigation of, I think, Messrs Goodman and Mulcaire, the CPS initially advised the Met that:
“The offences under Section 1 of RIPA would, as far as I can see, only relate to such messages that had not been previously accessed by the recipient. However, this area is very much untested and further consideration will need to be given to this”.
Furthermore, the DPP stated that the view of the CPS at the time was that it regarded the question of whether or not the unauthorised accessing of a voicemail message after the recipient has collected the message is a RIPA offence as a difficult legal issue which had not been tested or authoritatively determined; that there were tenable arguments either way; that the observations made by the noble and learned Lord, Lord Woolf, in 2002 of NTL Group Limited versus Ipswich Crown Court pointed to a narrow view; and that it approached the prosecution on the basis that if the issue of interpretation arose, it could be preferable to proceed on a narrow interpretation, thereby avoiding the necessity of having a contested trial.
The letter from the DPP in April noted the following points. First, no concluded or definitive view was ever reached, and from the outset the head of the CPS special crime division indicated that the interpretation is,
“very much untested and further consideration will need to be given to this”.
Secondly, that,
“the prosecution was never required to, nor did it, articulate a definitive view of the law … in the case of Messers Goodman and Mulcaire”.
Thirdly, in his view,
“the legal advice given by the CPS to the Metropolitan Police on the interpretation of the relevant offences did not limit the scope and extent of the criminal investigation”.
That final point is based on the advice given by the CPS to the Met that the case could have been prosecuted under other offences, including the Computer Misuse Act. However, the Met was apparently reluctant to bring a prosecution under that Act. It has been suggested that that was for tactical reasons, but I do not know whether that was the case. Whatever the situation may be, it does not detract from the need to clarify the law on arguably the most relevant offence under RIPA. We believe that a clarification in the law is needed to make it clear that an offence of illegal interception of voicemail messages applies regardless of whether that message has been listened to by the intended recipient. Our amendment would provide that clarification and I hope that the Minister will take this opportunity to provide such clarification. I beg to move.
Lord Henley
My Lords, the noble Lord, rightly, is looking for a degree of clarification, as suggested in his amendment. I do not think that we need clarification, and it might be helpful if I set out the case.
First, let me be clear that phone tapping or hacking is illegal. As the noble Lord made clear in his opening remarks, it remains illegal—I want to emphasise this—even if the intended recipient has access to that communication. I am aware of some of the concerns and the point was addressed directly by the DPP in the written evidence to the Home Affairs Select Committee in October last year. He stated that his advice to the police and the CPS would be to assume that,
“an offence may be committed if a communication is intercepted or looked into after it has been accessed by the intended recipient and for so long as the system in question is used to store the communication in a manner which enables the (intended) recipient to have subsequent, or even repeated, access to it”.
The recent Home Affairs Select Committee report, following its inquiry into unauthorised tapping or hacking of mobile communications, signified the particular importance of Section 2(7) of RIPA and that not enough attention had been paid to its significance. The committee did not recommend that Section 2(7) be amended. As Members of the Committee will be aware, we also have the Leveson inquiry, which is looking at a number of issues related to phone hacking. The first part of the inquiry, which is already under way, is focusing on the role and conduct of the press. The second part of the inquiry will examine the extent of unlawful or improper conduct at the News of the World and other newspapers and the way in which management failures have allowed it to happen. The original police investigation and its failings, the issue of corrupt payments to police officers, and the implications of all this for relations between police and the press will also be considered as part of the second part of that inquiry.
As the noble Lord will be aware, there are a number of other inquiries and investigations in hand and the police investigation into allegations of phone hacking continues, which I referred to in the Chamber only the other day in answering a Question. We believe it to be most appropriate, which I think the noble Lord would accept, to await the outcome of these various inquiries to know just what has happened, and so on, and to examine the conclusions before considering any changes to the law in this area. Further, we consider that the meaning of Section 2(7) is clear and that there are sufficient penalties in place to deal with offences of unauthorised interception. I refer the noble Lord back to the advice of the DPP to the CPS prosecutors. I hope that the noble Lord will accept that that deals with his points and that it is probably best to wait for the outcome of all those reports before he, we or anyone goes further.
Lord Rosser
My Lords, I thank the Minister for his response. I am not as convinced as he is that the present legislation is entirely clear because the events to which I referred would suggest that in certain fairly key quarters there appears to be some confusion over the current position. I do not mean confusion as far as the Minister is concerned, but I did refer to the police and the evidence that had been given. I am not entirely surprised that the Minister made reference to inquiries currently being undertaken. If I can take it from what he said, which I am sure I can, if those inquiries suggest that there is any lack of clarity in the present legal position, or even if the inquiry does not think there is a lack of clarity but nevertheless it would be helpful if the wording in the legislation were firmed up so that no one else could be in any doubt, that is the road that the Government will go down to end any confusion there might be on anyone’s part. On the basis that the Minister agrees that that will be the Government’s response—
Lord Henley
I do not know whether the noble Lord wants me to intervene to confirm that that is exactly the case. Obviously, we are awaiting the results of those inquiries, and it would be wrong for us to jump before that. Whatever they recommend will be something that the Government will have to consider with great care.
Baroness Royall of Blaisdon
My Lords, I pay tribute to the noble Lord for his diligence and doggedness on this issue. I find it extremely useful to have a list of primary and secondary legislation and Acts which bear relation to powers of entry. Maybe it is because I am now freed of the shackles of power that I am rather attracted by the notion that a list should be published in a schedule so that people can clearly see it. My one difference with the noble Lord is on his Amendment 136, in which he suggests that the Secretary of State should have a power to amend the list by a negative resolution. While I trust Ministers and would not wish to cast any aspersions on them, some extremely important powers of entry and Acts of Parliament would be cited in the list. It would be proper for any Minister to have to come to the House and be accountable, so I would be in favour of an affirmative rather than negative resolution.
Lord Henley
My Lords, my noble friend Lord Selsdon came to the House in, I think, 1963, as a member of the Independent Unionist Peers. I came somewhat later in 1977, and also joined that group. I was obviously not independent enough as soon after that they were rechristened the Association of Conservative Peers. Obviously, I take note of and am interested in what my noble friend said on these matters. Like the noble Baroness, Lady Royall, I pay tribute to his diligence and doggedness in this matter over the last 48 years—or is it even longer than that? The noble Lord has battled with these matters for a long time.
I was also fascinated to hear what he said about placing things in the Library. That is something that I have said on a number of occasions. I never knew that it was purely the prerogative of Ministers. If that is what my noble friend said then that must be the case.
Baroness O'Neill of Bengarve
My Lords, I have great admiration for what the noble Lord, Lord Selsdon, has done. The number of powers of entry is truly amazing and overwhelming, but I think that we are skirting a much bigger issue, which is the question of the implementation of Article 8 of the European Convention on Human Rights that covers the right to privacy. It is either beautifully observed or perhaps, I fear, widely neglected. I hope that we can take a more systematic view of when and under what circumstances powers of entry are justified. Listing them makes it very plain just how urgent the problem is, but I think that the remedies will have to be on a slightly different scale.
Lord Henley
My Lords, when I referred to the gateway that we talked about, I sought to say that what we are committed to do in the Home Office is to check any new powers as they come in from other departments to make sure that they can be justified before they are introduced. It is easy to introduce something without much further thought, but we are trying to create a form of approach that will allow for a greater degree of caution and care to be used before such powers are introduced.
Lord Selsdon
I am most grateful to the Minister, and maybe the time has come once again to offer the help of the private sector in solving the problem. My two extra amendments take into account the points he raised with me. The preparation of the list means not just the issuing of it but also its availability to people at the right time. I have arranged with Professor Richard Stone at the University of Lincoln, who is rewriting the powers of entry, search and seizure with the Oxford University Press, to co-operate fully, as we have before, with the Government. We might see whether we can arrange a powers-of-entry cloud. This would mean that it would be available on my iPad, on which even now I have the whole of the Home Office Bill along with the updates that the officials themselves have not yet had. I do not know why they use yellow on their website because it is not a good colour. If these things are readily available online and in the Library—
Lord Henley
Perhaps my noble friend will give way. He, like me, is wearing a yellow tie, and he is also wearing a yellow shirt. Perhaps it is a good coalition colour to be wearing on an occasion like this. No doubt the Home Office works in the same spirit.
Lord Selsdon
It was part of the coalition activities. This is an area that will not go away. What I am trying to say to the Minister and his team is that there are a lot of people out there who would be willing to help. There are methods of presentation and of access, but not least there is the interpretation. Although I will not read it out today, I refer noble Lords to Lord Hailsham—my noble friend Lord Marlesford may have mentioned that—because this issue was raised by Lord Hailsham 56 or more years ago. It is an important one. Of course I will not press the amendment now, but I will arrange to meet my noble friend and see what I can do to help him and his Bill team. I beg leave to withdraw the amendment.
Lord Henley
My Lords, I am not unsympathetic to the sentiments underlying the amendments in this group and I am not unsympathetic to the points made by the noble and learned Lord, Lord Scott of Foscote. Clauses 39 to 53 in Chapter 1 of Part 3 of the Bill go in the direction the noble and learned Lord would like to go. Obviously they do not go far enough as he would like to delete from Clause 39 “may” and replace it with “shall”.
I hope I will be able to explain this in response to my noble friend’s amendment but I think that might be going a bit too far. My noble friend would introduce a presumption that anyone seeking to exercise a power of entry may only do so either with the consent of the premises owner, which I think is Amendment 134, or under the authority of a warrant. That approach might be appropriate in many cases and that is why we want to look at all the powers we have and are asking all departments to do so. However, I am not persuaded that it would be right to adopt it as a blanket approach. One size does not fit all.
My previous job before the Home Office was in Defra. There, obviously animal disease was a matter of great concern to us. I also remember, as a farmer in the north of England not far from Longtown, the 2001 outbreak of foot and mouth. Obviously there is a need for the authorities, if we can put it like that, to be able to go into premises very rapidly, sometimes without a warrant—however rapidly the noble and learned Lord thinks that we can get a warrant. In the case of foot and mouth, speed was of the essence. It is possible that one of the reasons that the 2001 outbreak was not dealt with as effectively as it might have been was because there was initially a degree of inertia and a lack of speed.
The Committee will be aware that there are a very large number of powers of entry and we discussed that in the previous amendment. We want to make sure that we have appropriate lists of them to make life easier for individuals. However, when we carry out our review into all the powers as provided for by Clause 40(2) some will obviously prove necessary, some will require strengthening with further safeguards and some we will seek to abolish. That is why the word “may” might be more appropriate than the “shall” the noble and learned Lord is suggesting.
Lord Scott of Foscote
I was not suggesting that “shall” should apply to all the items. I was suggesting that it should apply to Clause 40(2)(d)—“may” could be kept for the rest.
Lord Henley
I take the noble and learned Lord’s point. He has not actually got an amendment down on this at the moment so we have not been thinking about that precisely but certainly we would consider having a look at that if the noble and learned Lord wants to come back to it on Report. I can see that Clause 40(2)(d) is where he wants the “shall” to come in.
The very simple point I am making is that not all powers of entry can be treated the same. Some powers of entry relate to the investigation of criminal offences or to a breach of regulation, but others do not. I would argue that it would be counter-productive in this instance, and indeed might prove unworkable in the case of powers of entry derived from European legislation, to seek to overlay a blanket requirement along the lines proposed in these amendments.
That is not to say that these types of safeguard do not have a place, and that is why we support the wider use of warrants whenever powers of entry are exercised. We also support the principle of consent in most cases—although obviously there are cases where consent would not be appropriate—and the removal of a power to enter people’s homes unless it is fully justified and accompanied by a magistrate’s warrant. I am trying to indicate that we need to consider the most appropriate approach on a case by case basis, and I think that Clause 40 allows us to do just that. The list of possible safeguards set out in subsection (2) includes a large number set out in paragraphs (a) to (k). These include a requirement for judicial authorisation and a requirement to give notice of the exercise of a power of entry and so on. I could read through the entire list. We consider that a targeted approach appears to be the preferable course of action on this occasion. The safeguards that apply best in most cases are specific to the type of investigation or inspection required and to the legislation conferring particular powers of entry.
I do not know if my noble friend Lord Selsdon wants me to go on to deal with his amendment or whether he is going to speak to it.
Lord Henley
I shall therefore give way. I thought that it was part of this grouping. However, my noble friend has not yet spoken so I shall listen to him.
Lord Selsdon
I shall speak simply on the matter of the code of conduct. The noble and learned Lord, Lord Scott of Foscote, pointed out that my amendment had certain faults in it because it should have said “either/or” and not all at once. What one had done before in discussion was to determine which factors should go into the code of conduct. My noble friend the Minister has rightly said that he will produce a very reasonable one. However, a difficulty is that each of the different pieces of primary and secondary legislation requires different consideration. For example, in the first 12 Bills listed on the Home Office website, there are 36 powers of entry relating to animals. They need a different method of handling when you enter a property. I want just to point out that I am on the same side as the Minister with regard to codes of practice or codes of conduct, but the noble and learned Lord pointed out that I should have put in “either/or” instead of the whole lot. That was my own typographical error.
Lord Henley
I am grateful to my noble friend for that explanation. I could not accept his code of conduct, but he will see what we have set out in Clauses 47, 48, 49, 50, 51 and even down to Clause 53 which sets out a corresponding code in relation to Welsh devolved powers of entry. It might be that my noble friend wants to have further discussions about that. However, what we have set out in terms of being able to alter or replace the code should be sufficiently wide and able to deal with difficult matters such as a code of conduct in relation either to animals or to other matters. On glancing through my noble friend’s code, I thought that it was what might be described as over-prescriptive. It is better to leave it to the route that we are setting out in the Bill.
Baroness Randerson
Perhaps I may point out that the Northern Ireland Assembly, the Scottish Parliament and the Welsh Assembly are busily creating their own powers of entry. Once this Bill is passed, as I hope very much it will be, the safeguards in it will apply to the powers of entry under UK legislation but not to legislation passed by the devolved Administrations. Have there been any discussions with the devolved Administrations about applying the same standards to their legislation?
Lord Henley
One of the joys of devolution is that it allows different parts of the United Kingdom to do different things. One might or might not approve of the different things they do, and they might create tensions in certain border areas. It will entirely depend on what powers each of the three devolved countries have as to what they do. Obviously we will continue to discuss matters with colleagues, as we do on all matters that go across borders. However, in the end it has to be a matter for them. It might be that differences will appear in due course, but once you have let the genie out of the bottle, that is what happens.
Baroness O'Neill of Bengarve
Since there will be conversations, it might be important to think about the way in which this code of conduct can be understood by citizens whose premises are to be entered, or not entered, in that this is very much addressing the official who seeks to enter, and what he or she may or may not do. It is very important to have something very simple that the citizen can actually grasp and say, “No, you have no warrant. I do not agree. This is not an emergency, so not now”.
Lord Henley
I well understand what the noble Baroness is saying. As we all know, statute is not written in a language that most of us find that easy to understand—although I have no doubt the noble and learned Lord finds it easy to understand. Codes of conduct are obviously written in a manner that we hope will be understandable by all those who have to either make use of them or who will be affected by them. I am sure that as codes of conduct are drawn up, the strictures the noble Baroness has mentioned will be taken into account.
Lord Marlesford
My Lords, I thank the noble and learned Lord, Lord Scott, for his very powerful support, which I think the Government should take very considerable note of. The Minister gave no indication of any real sympathy with this. The examples he gave from the Defra thing of course are covered extremely well by my second amendment, which says quite clearly that where the purpose of the exercise of the power of entry would be in any way frustrated by having to get agreement, or even a warrant, that that could be justified under the present situation.
As the noble Earl, Lord Erroll, said, this is a very important subject, and he made some very useful points. We shall certainly return to it on Report. I believe that there will be widespread support on all sides of your Lordships’ House for what we are trying to do. If there is any chance of having constructive conversations with the Home Office—which I rather doubt—I would be happy to have such discussions. However, at the moment I absolutely reject the idea that this one-by-one study in any way replaces what I want, which is a much more constrained, sensible and proper use of powers of entry. Although in the mean time I have to withdraw the amendments, we shall be returning in full force to them on Report.
Baroness Royall of Blaisdon
My Lords, I support the amendment tabled by the noble Lord, Lord Armstrong, and other members of the Joint Committee. It is an eminently sensible amendment because the Government have rightly recognised the practical impossibility in certain circumstances of emergency legislation, hence the introduction of Clause 58. However, as the noble Lord, Lord Armstrong, said, there remain real concerns over the workability of the Government’s proposal.
We believe that there is a serious risk of jeopardising a fair trial if Parliament is to be provided with enough information to properly scrutinise the necessity of the use. It seems as though it would be practically unworkable because, as the noble Lord said in his introductory statement, there would be a need to introduce and pass legislation with too short a timeframe to enable proper scrutiny and accountability. The scrutiny of legislation within such a short deadline would appear to be a dangerous way to legislate because the time pressures and state of emergency would undermine proper and dispassionate scrutiny of the legislation. By prescribing the use of an emergency power too tightly, within the most serious situations, the sheer use of the power would indicate to any future jury the unusual gravity of the case and therefore prejudice its views. We support the amendment moved by the noble Lord, Lord Armstrong.
Lord Henley
My Lords, I am grateful to the noble Lord for his detailed consideration of this clause, and I thank him for his letter of 16 November in which he provided a detailed explanation of the reasons behind his amendment.
The amendment would extend the circumstances in which an order could be made under Clause 58 to increase the maximum period of pre-charge detention in relation to terrorist suspects from 14 to 28 days. We have made it clear that we believe that the maximum period for pre-charge detention for terrorist suspects should in the majority of circumstances be 14 days. Given that no suspects have been held for longer than 14 days since 2007, it is evident that such a long period is not routinely required.
Lord Henley
“(6ZA) As soon as practicable after making an order under paragraph 38 of Schedule 8, the Secretary of State must lay a copy of the order before each House of Parliament.”
Lord Henley
Lord Henley
My Lords, I wonder whether this is a convenient moment for the Committee to adjourn until Tuesday, 10 January at 3.30 pm. I wish the Committee a very happy Christmas.