Investigatory Powers (Codes of Practice and Miscellaneous Amendments) Order 2018

Lord Haskel Excerpts

Wednesday 18th July 2018 Grand Committee

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, the regulatory framework governing the use and authorisation of investigatory techniques provided for by the Regulation of Investigatory Powers Act 2000, or RIPA, ensures that the public authorities empowered to use these important techniques do so in compliance with the right to privacy under Article 8 of the European Convention on Human Rights. Noble Lords will be aware of how important these provisions are, along with those in related legislation, including the Investigatory Powers Act, to the vital work undertaken by the intelligence and law enforcement agencies, as well as by other public bodies with enforcement or regulatory functions. These Acts allow for the authorisation of investigative techniques that are used by investigators to obtain intelligence and evidence to disrupt the activities of serious and organised crime groups, prevent terror attacks, establish guilt, and ensure that our agencies can locate and safeguard vulnerable and missing people.

The RIPA framework ensures that there are strong, transparent safeguards in place that are appropriate to the intrusive nature of these investigatory powers, so that they are used lawfully and proportionately. This is developed further by the significant strengthening of safeguards and changes to the oversight of all investigatory powers brought about through the Investigatory Powers Act. These strengthened safeguards, therefore, together with the clear requirements set out in the codes of practice and the rigorous independent oversight provided by the Investigatory Powers Commissioner, establish clear limits around the use of these powers, and ultimately provide reassurance to the public that the powers are being used in ways that serve the best interests of us all.

The Investigatory Powers (Codes of Practice and Miscellaneous Amendments) Order 2018 introduces three revised codes of practice, as well as making some amendments and updates to the public authorities authorised to use surveillance powers under RIPA. The order also makes a minor technical amendment to provisions on the use of combined warrants under the Investigatory Powers Act 2016. I am aware that the noble Lord, Lord Haskel, is keen that we also discuss today the Regulation of Investigatory Powers (Juveniles) (Amendment) Order 2018, which amends the existing authorisation regime for the use of people under the age of 18 as covert human intelligence sources. I thank him for giving the Committee the opportunity to hear about the extensive safeguards in place.

The revised codes of practice provide guidance on covert surveillance, property interference, covert human intelligence sources, or CHISs, and the investigation of protected electronic information—activities which are regulated by RIPA as well as by the Police Act 1997 and the Intelligence Services Act 1994.

First issued in 2002, the CHIS and covert surveillance codes of practice were last updated in 2014. They, along with the investigation of protected electronic information code, which was introduced in 2007 and has not been updated since, have all been updated, mainly to reflect the changes brought about by the Investigatory Powers Act. These include the creation of the new Investigatory Powers Commissioner, the changes made by the introduction of equipment interference as a technique separate from the existing property interference powers, and the need to mirror the strengthened safeguards for the handling of confidential and privileged material.

Other updates and clarifications have been made to the guidance to reflect and improve current operational practice. We consulted publicly on them at the end of last year. For instance, the guidance on procedures to be followed where investigators use the internet for covert investigatory purposes or where covert surveillance is undertaken by means of drones, and the provisions intended to reinforce the safety of covert human intelligence sources, have all been expanded.

In addition, we are updating the lists of the public authorities and officers able to authorise the use of directed surveillance and covert human intelligence sources. These updates ensure that public authorities can continue to authorise the use of investigatory powers following changes to their organisational structures and remove any authorities that no longer require the powers, and are in themselves a safeguard against the inappropriate or indiscriminate use of the investigatory powers. They ensure that their use is limited to specified public authorities and can be authorised only by specified officers within those authorities who have sufficient authority and expertise.

Lastly, we are correcting a technical error in the Investigatory Powers Act provisions for authorising a combined warrant, reflecting Parliament’s clear original intention that warrants should last for six months, rather than the clearly far-too-short period of two working days. This timely improvement will assist our intelligence services in their work of identifying and disrupting threats to our national security.

All the changes to the codes of practice and the authorisation framework for the powers ensure that the highest standards continue to be required of those using the powers and that they are underpinned by ever-stronger safeguards against their misuse. I commend the order to the Committee and hope that during the debate I can provide reassurance to the noble Lord, Lord Haskel, and others on the use of juveniles as CHISs. I beg to move.

[Lord Haskel (Lab)]

I thank the Minister for introducing the order and for raising the question of the juveniles order. I think it would be of convenience to the Committee if we debated them together.

I sit on your Lordships’ Secondary Legislation Scrutiny Committee. Our task is to consider and scrutinise all the Government’s regulations and orders—what is known as secondary legislation. We report weekly on what we think would be of interest to the House and what gives us cause for concern. Normally we do this on paper, but we thought that the regulation regarding juveniles warranted further debate.

Our committee is a mixed bunch. Our chairman—the noble Lord, Lord Trefgarne—and other members of the committee are here. We are from all sides of the House. There are some old hands, like me, and some welcome new faces. Some have had experience in government. But the one thing that most of us have in common regarding this order—and I include Jane White, our experienced and effective adviser, who worked on the order—is that we are parents and, as parents, we know that young people in their mid to late teenage years are going through a time of great change, when they are vulnerable and often need support. Our concern is that the order does not provide that necessary support and understanding.

We wrote to the Home Office, saying that the Explanatory Memorandum—EM—explained why this extension of one month to four months was administratively convenient. Yes, the Explanatory Memorandum acknowledged the need to take account of the welfare of the young people. But it was not clear how this would be achieved. We wrote to the Minister for Security and Economic Crime about this concern. In reply, he justified the use of these young people, explaining that young people are increasingly both perpetrators and victims of crime and so are increasingly able to assist in the prevention and prosecution of crime. He certainly acknowledged the need to look after the young people’s welfare and said that the code was being updated—that is the code of which the Minister has just spoken.

The Explanatory Memorandum has indeed been updated. It mentions some of the safeguards and says why they are needed. But what is still missing is exactly how the welfare and safety of these juveniles will be achieved.

Working undercover can be made to look very attractive to a juvenile, but what about the risks? There is the risk of being beaten up, of sexual exploitation, of reprisals, as well as the impact on their education and on their mental health. The Home Office reports that it has to deal with an increasing number of mental health problems. The Minister is also silent on the number of young people involved in this undercover work, so we ask: is it right to put one juvenile in jeopardy for the greater good?