Protection of Freedoms Bill

Baroness Hamwee Excerpts

Thursday 15th December 2011 Grand Committee

[Lord Phillips of Sudbury]

My Lords, I apologise in advance for a singularly technical group of amendments, but they need to be explained, if only so that Hansard can show to those who are not here why they have been put forward. They are inescapably dry, not to say turgid. This group contains Amendments 116 to 119, which amend Clause 37, and Amendment 132 which, via the Bill, makes four amendments to Section 22 of the Regulation of Investigatory Powers Act 2000.

Clause 37 incorporates new Section 23A into RIPA 2000, thus extending the cases when judicial approval has to be obtained for surveillance. It is a clause that is to be welcomed, as indeed is the Bill as a whole. Amendments 116 to 119 to new Section 23A are drafting ones, but having suffered from unnecessarily obscure wording during the original passage of RIPA, where I led for these Benches, it still remains one of the most complex statutes there is. I hope that the Committee will think that the amendments are worth while.

Amendments 117 and 118 delete what I think are superfluous phrases from Clause 37, the phrases being, “if any” in subsection (2) and “as the case may be”, which appears later in that subsection. Superfluity of language is to be avoided.

Amendments 116 to 119 to the same new clause rectify what seems to me to be a clear error of drafting. I may say that putting together this Bill must have taxed the drafting skills of parliamentary draftsmen to the limit, and one can hardly be surprised if there is the occasional wrinkle. Amendments 116 and 119 address a confusion repeated in new Section 23A. It distinguishes authorisations under Section 22(3), (3B) and (3F) of RIPA from notices required under Section 22(4) of RIPA. Broadly, authorisations allow surveillance to take place whether or not subject to judicial approval, whereas notices are mandatory and require postal or telecommunications operators to disclose data. Both authorisations and notices, which are distinguished throughout both RIPA and this Bill, can be renewed but they are renewable under different provisions in RIPA 2000 and in this Bill.

However, new Section 23A, set out in Clause 37 of the Bill, states in subsections (1) and (3) that the renewal of authorisations is derived from the same sections as the grant of the same. My Amendments 115 and 119 would rectify that by making it clear that renewals are made under subsections (5) and (6) of Section 23 of RIPA 2000. I am not now entirely sure, on rereading my amendments, that reference to Section 23(6) in Amendment 119 is appropriate, but the Minister will soon tell me. It is rather a lot to ask him to have a view on these arcane matters on the instant.

Amendment 122 contains four amendments to Section 22 of RIPA, which will be incorporated through this Bill. Subsection (1) of Section 22 of RIPA gives the context within which breaches of privacy so as to disclose communications data shall be permissible. At the moment, it says:

“This section applies where a person designated for the purposes of this Chapter believes that it is necessary on grounds falling within subsection (2) to obtain any communications data”.

Perhaps we tried when the Bill was passed to insert “reasonably” before “believes”. However, it is never too late and my first change to Section 22 would achieve just that. It seems obvious and follows the general tenor of this Bill that the belief of the designated person should be reasonably arrived at.

The third change in my Amendment 122 to subsection (5) of Section 22 again seems to me obvious: namely, that a lazy or perverse belief on the part of any official should not be sufficient to trigger the authorisations permissible under this important but necessary invasion of citizen privacy.

The second change of my four is to subsection (3) of Section 22 of RIPA 2000, which, as it stands, appears to allow a designated person in effect to delegate his or her power of authorisation to,

“persons holding offices, ranks or positions with the same relevant public authority as the designated person to engage in any conduct to which this Chapter applies”.

Unless my interpretation of this subsection in RIPA is misconceived, this less-than-clear wording would allow a designated person, whose designation has to be prescribed by the Secretary of State by order under Section 25, to delegate under Section 22(3) to persons in the same public authority of any office, rank or position inferior to that of the person making the delegation. Again, in common sense, that cannot be right; hence my insertion of “comparable” so that the delegation by an official under Section 22(3) must be to a person of comparable rank or position.

Lastly—noble Lords will be glad to know that I am coming to the end of this exciting oration—the fourth amendment in my Amendment 122 harks back to the earlier ones in this group. It would change subsection (4)(b) of Section 23 of RIPA by removing “authorise or”, since those words relate to authorisations whereas subsection (4)(b) is exclusively concerned with notices, which, as I have explained, are not permissive but mandatory, and require—that is the relevant word—this or that from the postal or telecommunications operator to which the requirement is addressed.

I am sorry to have taxed the patience of the Committee with these somewhat obscure points but I believe that these amendments would improve the Bill. I beg to move.

[Baroness Hamwee]

My noble friend may not like this question, but we are all family here, are we not? I absolutely agree that one needs a good supply of hot towels when reading this Act. Almost the last point he made was about his Amendment 122, which draws attention to Section 22(3), granting authorisation “for persons holding”—he would like to say comparable—“offices”. I read that as meaning that if you are designated to grant authorisation, you can allow a colleague, whether or not of the same seniority, to engage in the conduct that is referred to in Section 21. What that seems to be doing is saying that the designated person is in a position to grant authorisation, but it is perfectly okay to grant it within his own authority and that the conduct referred to in Section 21 does not mean delegating or granting authorisation to a third party. I am sorry if I have added to the need for hot towels.

[Lord Phillips of Sudbury]

I am not perfectly sure that I understood my noble friend’s point. I think she is talking about comparability.

[Baroness Hamwee]

I am asking what the conduct is.

[Lord Phillips of Sudbury]

Yes. The reason I think that Section 22(3) of RIPA is wrong is that it does not make any requirement, as I see it, as to the rank or the position of the person to whom any delegation is made by the person originally designated under very carefully confined powers. As my noble friend pointed out, the definition of a designated person involves the Secretary of State making the designation, but when in Section 22(3) a delegation is in effect made, there is no such requirement. Where it refers to the same relevant public authority, that is fine. The person to whom delegation is made has got to be someone else in the same relevant public authority, but there is no requirement as to what rank that person is.

[Baroness Hamwee]

My Lords, my point was that I do not think this is about delegation of authority. I think it is about authorising the conduct which, were it to be proposed to be undertaken by someone in a different organisation, would require authorisation.

[Lord Phillips of Sudbury]

My Lords, my noble friend may be right. We disagree, as things stand, as to the meaning of Section 22(3) which, I think she will readily agree, is obscurely worded.

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Moved by

[Baroness Hamwee]

124: Clause 38, page 29, line 44, at end insert—
“(2A) Subsection (2) shall not apply to an authorisation granted in contemplation of any surveillance undertaken in pursuance of Part 3 of the Environmental Protection Act 1990 or the Noise Act 1996 in respect of noise.”

[Baroness Hamwee]

My Lords, I think I need to take my noble friend Lord Phillips of Sudbury aside to explain that whisky may dull the pain but caffeine keeps one on the job better.

[Lord Phillips of Sudbury]

Speak for yourself.

[Baroness Hamwee]

I do speak for myself. I hope Amendment 124, at any rate in the drafting, is a little more straightforward. I declare an interest as one of a number of vice presidents of the Chartered Institute of Environmental Health, from which this amendment comes. The amendment is concerned with environmental health and, in particular, with noise.

There has been, I understand, a long-running issue as to whether the investigation of noise nuisance requires covert surveillance. It is not the Home Office but in fact Defra which has mainly been concerned with this. Environmental health officers listen to noise in its context and record, one of the technical terms, anything listened to which brings—as I understand it since it is as the institute understands it—what it does within the meaning of Section 26(9) of RIPA. The Home Office takes the view that dealing with noise nuisance does not ordinarily require covert surveillance and so it is not caught by RIPA. Perhaps this amendment covers it if and when it does. Therefore this amendment is a probing one. The institute is generally in support of the need for judicial authorisation but so far as its work is concerned in this area there are some difficulties.

As this has been long running, it is able to anticipate the arguments that may be made against the need for such an amendment so I am going to start with the response and then its response to each of the Home Office’s likely responses. The first is that surveillance follows complaints so quickly that obtaining authorisation would not be reasonably practicable and that this excuses the need for authorisation. The institute says that the exception is when surveillance is undertaken as an “immediate response”, such as when a police officer sights a suspect in the street. There is always going to be a delay between the making of the noise complaint and its investigation. Secondly, if local authorities warn noise perpetrators that they may be monitored surveillance following that will not be covert and so will not be caught by RIPA.

Giving a warning causes delay. It rather undermines the duty on local authorities under the Environmental Protection Act to investigate complaints and quite obviously it would tend to be self-defeating. I dare say many noble Lords will have experienced complaint in different contexts to noise or what they may perceive as noise. I perceive muzak as noise. I have often asked for it to be turned down. It is turned down temporarily in a place of entertainment and up it goes again. Thirdly, if local authorities warn noise perpetrators that they may be monitored, again surveillance will not be covert and so not caught. I beg your pardon. I should have said that giving a warning takes the investigation out of RIPA and the measurement of sound pressure levels does not require authorisation. But there is no numerical standard for noise nuisance because environmental health officers have to judge the noise in context. Depending on what else is going on, the noise may or may not be intrusive, and for evidential purposes it is accepted practice to record it.

Fourthly, private information is unlikely to be obtained because perpetrators have no right of privacy to information that is audible outside the premises it is coming from. However, the institute draws attention to the definition in RIPA of “private information” by reference to its content as distinct from its audibility. Fifthly, surveillance carried out without authorisation is not necessarily unlawful. That is the case where there is an equivalent process of authorisation in another statute, but that does not apply in this case. Lastly, the whole thrust of this part of the Bill is the protection of magistrates’ approval against unjustified snooping by local authorities, and both I and the institute have sympathy with that. The Home Office has confirmed in Answer to a parliamentary Question in another place that there is no evidence to suggest that noise investigations are being carried out inappropriately by local authorities. We have read of instances where local authorities have rather overstepped the mark in their use of the powers, but this is not one of those examples.

In the hope that I have not taken too much of the Minister’s speech in anticipation of the answer, I beg to move.

[Baroness Stowell of Beeston]

My Lords, I thank my noble friend for her introduction to the amendment, and indeed she has anticipated quite a lot of what I will say in response. None the less, there are some things that are worth emphasising, and I hope that in doing so I can give her some assurances. I certainly agree that noise nuisance is something that is clearly intolerable to the person experiencing it and that in many instances the noise under investigation may occur at night, so anyone who is subject to that kind of disturbance feels strongly about the situation they find themselves in and wants any action to deal with it to be rapid. However, Amendment 124 is unnecessary because the sort of noise we are talking about, that which causes disturbance and affects people’s lives, is not caught by RIPA.

Before I go on to cover some of the topics raised by my noble friend, let me say that Home Office officials have already met representatives of the Chartered Institute of Environmental Health and of Defra to discuss these points. We have said that we shall work with them on revising the RIPA code of practice on covert surveillance in order to make it clear that authorisation under RIPA is unlikely to be necessary for noise abatement reasons. Surveillance conducted and governed under RIPA relates to private information only. It requires that when public authorities obtain private information covertly, they do so only when it is necessary and proportionate, in line with our right to privacy. However, the privacy implications of someone making a loud noise will usually be such that RIPA is not engaged. Loud machinery, alarms or music, for instance, are not private information, and if the noise emanating from someone’s house because of, say, an argument is so loud that it can be heard in the street outside or the adjoining property, it is highly questionable whether the people concerned have a realistic expectation of privacy. If the noise involves violent or threatening behaviour, then it would always be appropriate to call for the police.

If the council’s policy is to serve an abatement notice warning that monitoring may be carried out, then that monitoring cannot be deemed to be covert in nature, which my noble friend has already anticipated. In these scenarios, a RIPA authorisation would not be required. This is made clear in the RIPA covert surveillance code of practice; that code has statutory force.

The only instance where a RIPA authorisation definitely would be required is where a local authority noise monitoring device was calibrated to boost the signal so as to record conversations which could not be heard outside the property with the naked ear. However, this would constitute intrusive surveillance and RIPA does not permit local authorities to do this. Most people would agree that this would be an unwarranted breach of someone’s privacy. I therefore maintain that local authority noise monitoring would not normally require to be authorised under RIPA; that this is already made clear in RIPA; and that it therefore would not be subject to prior magistrate approval. However, as I say, we are meeting with the Chartered Institute of Environmental Health and Defra to look at the code of practice. Before I ask my noble friend to consider withdrawing her amendment, I wish to reinforce the Government’s view that noise disturbance of the kind she describes is an important matter. However, I do not think that her amendment is necessary.

[Baroness Hamwee]

My Lords, I agree that very often in the sort of situation about which the noble Baroness and I are talking, any conversations which take place are not very edifying or instructive—“indiscreet” might be the term for them. I live fairly near a pub so that is why I make that comment. I have learnt a lot of bad language over the years as I have heard it in the very late hours.

I welcome what the noble Baroness says about the possible revision to the code of practice, but I am concerned that if the legislation requires authorisation the code of practice cannot undo that requirement. However, I will read what she has said and discuss it with the institute. I beg leave to withdraw the amendment.

Amendment 124 withdrawn.

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Moved by

[Baroness Hamwee]

129: After Clause 38, insert the following new Clause—
“Matters subject to legal privilegeInvestigatory powers: legal privilege
(1) In section 5 of the Regulation of Investigatory Powers Act 2000 (interception with a warrant), after subsection (6) insert—
“(7) But an interception warrant does not authorise conduct undertaken for the purpose of doing anything in relation to—
(a) a communication, insofar as the communication consists of matters subject to legal privilege;(b) communications data, insofar as the data relate to the communication of matters subject to legal privilege. (8) In subsection (7), “matters subject to legal privilege” means matters to which section 98(2), (3) or (4) of the Police Act 1997 applies, but does not include a communication made with the intention of furthering a criminal purpose.
(9) The Secretary of State may by regulations make provision for the determination (on an application for an interception warrant or otherwise) of the question whether, in any case, a communication is made with the intention of furthering a criminal purpose.
(10) A code of practice issued under section 71 may in particular contain provision about—
(a) the steps to be taken to minimise the risk of conduct undertaken pursuant to an interception warrant resulting in accidental acquisition of a communication, or communications data, falling within subsection (7);(b) the steps to be taken if it appears that such conduct has accidentally resulted in acquisition of such a communication or data.”(2) In section 22 of that Act (obtaining and disclosing communications data), after subsection (9) insert—
“(10) An authorisation or notice under this section does not authorise or require anything to be done for the purpose of obtaining or disclosing communications data relating to the communication of matters subject to legal privilege.
(11) In subsection (10), “matters subject to legal privilege” means matters to which section 98(2), (3) or (4) of the Police Act 1997 applies, but does not include a communication made with the intention of furthering a criminal purpose.
(12) The Secretary of State may by regulations make provision for the determination (on an application for an authorisation or otherwise) of the question whether, in any case, a communication is made with the intention of furthering a criminal purpose.
(13) A code of practice issued under section 71 may in particular contain provision about—
(a) the steps to be taken to minimise the risk of accidentally obtaining or disclosing communications data falling within subsection (10) in the course of anything done under this section;(b) the steps to be taken if it appears that anything done under this section has accidentally resulted in such data being obtained or disclosed.”(3) In section 27 of that Act (authorised surveillance and human intelligence sources), after subsection (4) insert—
“(5) An authorisation under section 28 or 32 does not authorise surveillance for the purpose of obtaining information about—
(a) anything taking place on so much of any premises as is in use for the purpose of legal consultations, or(b) matters subject to legal privilege.(6) An authorisation under section 29 does not authorise any activities involving conduct of a covert human intelligence source, or the use of such a source, for the purpose of—
(a) obtaining matters subject to legal privilege,(b) providing access to any matters subject to legal privilege to another person, or(c) disclosing matters subject to legal privilege.(7) In subsection (5), “legal consultation” means—
(a) a consultation between a professional legal adviser and his client or any person representing his client, or(b) a consultation between a professional legal adviser or his client or any such representative and any other person made in connection with or in contemplation of legal proceedings and for the purpose of such proceedings,except in so far as the consultation consists of anything done with the intention of furthering a criminal purpose.(8) In subsections (5) and (6), “matters subject to legal privilege” means matters to which section 98(2), (3) or (4) of the Police Act 1997 applies, but does not include anything done with the intention of furthering a criminal purpose.
(9) The Secretary of State may by regulations make provision for the determination (on an application for an authorisation or otherwise) of the question whether, for the purpose of subsection (7) or (8), anything is done with the intention of furthering a criminal purpose.
(10) A code of practice issued under section 71 may in particular contain provision about—
(a) the steps to be taken to minimise the risk of conduct undertaken in reliance on this Part accidentally resulting in information of a kind mentioned in subsection (5) being obtained or in any of the things mentioned in subsection (6)(a), (b) or (c) being done;(b) the steps to be taken if it appears that such conduct has accidentally resulted in such information being obtained or such things being done.””

[Baroness Hamwee]

My Lords, this amendment was suggested to me and drafted by the Bar Council. Although it looks long and a bit daunting, I hope the Committee will understand that the point which it addresses concerns a simple point of principle, and the practice of that principle. The principle is the need to protect legal professional privilege. The Bar Council is seriously concerned that RIPA violates legal professional privilege by permitting authorities secretly to obtain information about privileged communications, in particular private meetings and other communications between a lawyer and a client. I was pleased to be asked to table this amendment as I feel very strongly that a lawyer and his client should be able to speak freely, and that the lawyer should be able to take instructions without fear of them being listened to.

The right of someone in custody to a private consultation with a lawyer is expressly protected by the Police and Criminal Evidence Act 1984. The importance of an accused person being able to confer with his lawyer in private has also been emphasised in numerous cases under the ECHR. Indeed, it has been said that it is a fundamental condition on which the administration of justice rests.

The need for reform of RIPA was revealed by a case in 2009, In Re McE, when the House of Lords held that Part II of RIPA permits the covert surveillance of meetings between defendants and their lawyers. Noble Lords will be aware of recent high-profile cases involving CHIS—covert human intelligence sources— that have emphasised the need for privilege to be protected expressly; for example, the case of the undercover police officers, PC Mark Kennedy and DC Jim Boyling, infiltrating protest groups pursuant to RIPA authorisations. The Government’s partial response to In Re McE was to make two orders and two codes of practice under powers contained in the Act, one relating to directed surveillance and the other to covert human intelligence sources, which altered the authorisation procedures, but these do not address the fundamental problem.

We have already referred to the complexity of RIPA. The new clause has been carefully drafted—I am happy to say not by me—to ensure that covert powers of investigation cannot be used to target legally privileged information, while at the same time ensuring that privilege is not abused for a criminal purpose and that the regime caters for a position where it turns out that the privileged material has been acquired accidentally. The provisions would prevent the targeting of legally privileged material. The draft clause uses the code of conduct as a vehicle for guidance on minimising the risk of accidentally obtaining privileged material.

What I understand is called in the trade the “iniquity exception” has been reduced in scope. The Police Act 1997 takes matters out of privilege if the item or communication is,

“in the possession of a person who is not entitled to possession of them”

or is held or made,

“with the intention of furthering a criminal purpose”.

The Bar Council points out that the first of these exceptions would be counterproductive but it has reduced the scope rather than simply taking out the exception, which would perpetuate the problem that it is seeking to deal with. The wording in subsection (6) of the draft clause defining what cannot be targeted by a CHIS is borrowed directly from one of the 2010 orders made following the case to which I referred.

The provision about surveillance is based on evidence from solicitors that legal consultation involving protests or other multiple-defendant situations often take place in private premises—noble Lords will remember that one of the recent examples was of protesters at a power station whose group had been infiltrated by a police officer—and this amendment covers premises in so far as they are used for legal consultations. The other of the 2010 orders to which I have referred makes specific provision for targeting any place in use for legal consultations—in other words, it limits the premises and therefore limits the scope of the order. The definition of legal consultations that has been used is, however, very similar to that used in the order that is already in force.

It is a long amendment but, as I say, at the heart of it is a simple but very important proposition. I beg to move.

[Lord Scott of Foscote]

My Lords, I am in general sympathy with the objective behind this amendment but have some anxieties about the effect of subsections (9) and (12), which mirror one another in similar language. They seem to say that the question of whether a communication has been made with the intention of furthering a criminal purpose is to be determined in accordance with regulations or provisions made by the Secretary of State. Whether a particular communication is protected by privilege or that privilege is forfeited because the purpose of the communication was to further a criminal purpose is the sort of issue that could easily come up in legal proceedings before an ordinary court. On this notion that the Secretary of State could pre-empt that, I note the language,

“make provision for the determination (on an application for an”—

interception warrant, which I can understand—

“or otherwise)”.

That “or otherwise” seems to carry the power right through to legal proceedings where the question of privilege is an issue. I would like some elucidation on the intention behind these two subsections.

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[Baroness Stowell of Beeston]

My Lords, I will endeavour to respond as comprehensively as I can to the issues raised in this short debate. I appreciate the concerns raised by the Bar Council but your Lordships will understand that no one can regard themselves as beyond the law or immune from investigation or prosecution. Nevertheless, RIPA recognises the special relationship between a lawyer and client, and puts in place special protections for any covert obtaining of material subject to legal and professional privilege.

RIPA already limits obtaining legally privileged material to intelligence and law enforcement agencies investigating serious crime or acting in the interests of national security. In each case, whether it is interception or surveillance, internal authorisation is by senior official—for instance, the director-general of the Security Service or a chief constable. In addition, and crucially, this is then subject to external independent approval, either by the Secretary of State or a surveillance commissioner, before any covert action can be taken.

The RIPA codes of practice, which have statutory force, provide further safeguards. The interception code makes it clear that where communications which include legally privileged communications have been intercepted and retained, or where the subject of the interception is to be a lawyer, the matter should be reported to the Interception of Communications Commissioner during his inspections and the material be made available to him, if requested.

In addition to safeguards governing the handling and retention of intercept material as provided for in Section 15 of the Act, caseworkers who examine intercepted communications should be alert to any intercept material which may be subject to legal privilege. Where there is doubt as to whether the communications are subject to legal privilege, advice should be sought from a legal adviser within the intercepting agency. Similar advice should also be sought where there is doubt over whether communications are not subject to legal privilege due to the “in furtherance of a criminal purpose” exception. The covert surveillance and covert human intelligence source codes make it clear that such independent external approvals will be granted only where there are exceptional and compelling circumstances that make the authorisation necessary—for instance, where there is a threat to life or limb or to national security.

My noble friend Lady Hamwee and the noble Lord, Lord Rosser, have already made reference to the McE case. In 2009, the former Judicial Committee of your Lordships’ House ruled in that case that RIPA could be used to authorise the covert surveillance of legally privileged consultations but that this needed to be subject to an enhanced approval process. The enhanced RIPA safeguards were tested in the case of RA v Chief Constable of the Police Service of Northern Ireland where the High Court of Northern Ireland ruled that the RIPA regime was lawful and provided sufficient safeguards against abuse. To be clear, those new safeguards have been tested in a court of law and were found to be robust.

In reference to the comments made by the noble and learned Lord, Lord Scott, about the amendment put forward by my noble friend Lady Hamwee, I will of course leave my noble friend to respond to him. Given these existing stringent limitations and safeguards on public authorities obtaining legally privileged material under RIPA, and the fact they have been tested in court, as I have said, and have been found to be robust, I would suggest to my noble friend that this amendment is unnecessary and I invite her to withdraw it.

[Baroness Hamwee]

My Lords, this being Grand Committee, of course I will withdraw the amendment. The noble Baroness’s reference to the role of the commissioner and some other comments seem to be steps taken to deal with the issue after the horse has bolted. But I will read her comments carefully. The point that no one is immune from prosecution is not something with which I seek to argue. It is a parallel but different point.

The noble and learned Lord, Lord Scott, make a very interesting point about regulations made by the Secretary of State. I did not mean to disclaim responsibility for drafting the amendment; I meant to give credit to others. But I did not draft it and I do not think that it would be right for me to attempt to respond in any detail at this point. The noble and learned Lord set me an interesting dilemma and I shall think about it after today’s Committee Sitting to consider how one might address it.

I do not believe that the Bar Council would have gone to the effort of dealing with a matter about which the current Lord Chief Justice has himself expressed disquiet had it felt that an amendment was not necessary, so I will be talking to the council between now and the next stage. Other noble Lords have asked if there might be a meeting to discuss a number of issues, and this is one that will be particularly amenable to some further discussion, if that is possible. I do want to imply anything as regards the noble Baroness, but for myself this is pretty much above my pay grade. I beg leave to withdraw the amendment.

Amendment 129 withdrawn.