Protection of Freedoms Bill

Baroness O'Loan Excerpts

Tuesday 8th November 2011 Lords Chamber

[Baroness O'Loan]

My Lords, there is much to be welcomed in the Protection of Freedoms Bill. Issues such as the modification of the rules relating to powers of entry and the new rules on biometric material, including the requirements for the destruction of certain DNA samples, are important. As one who has had responsibility in the past for the destruction of DNA samples, I would ask the Government whether there is an intention to provide also for the destruction of the records which relate to those samples, because we discovered that this was an adjacent need.

I welcome the disregarding of convictions under Part 5, Chapter 4. I share the concerns articulated by the noble Baronesses, Lady Hamwee and Lady O’Neill, and the noble Lord, Lord Bew, in relation to Clause 100 and the freedom of information provisions for data sets.

I would like to endorse the many comments that have been made in relation to the protection of children under Part 5. There are concerns about the extent to which existing protections for children may be reduced by the exclusion of volunteers working, for example, in classrooms, sporting organisations and other supervised groups where the contact may be frequent and ongoing. Those are very important contacts because they help children, but they can also be used by abusers to build a relationship which may result in harm to children. The question that I have been asked is whether the proposed arrangements will, for example, permit an adult who has been barred from taking up a regulated post to volunteer for an unregulated activity? Are the Government satisfied that the proposed arrangements, which would place an individual on a barred list only if they have been, will be or are likely to be engaged in regulated activity, adequate? Will the result of this be that concerns about those not in regulated activity cannot be shared with the ISA?

The second area to which I wish to draw your Lordships’ attention relates to Part 2. The Regulation of Investigatory Powers Act deals with a range of investigatory techniques, including interception of communications, access to communications data, directed surveillance and intrusive surveillance, such as placing bugs in homes and cars. These techniques are widely used by a range of bodies.

I welcome the introduction of Clauses 29 and 34, providing for a code of practice for the development and use of surveillance camera systems and the creation of the Office of Surveillance Commissioners. The commissioner will have the responsibility to encourage compliance with the new camera code, review the operation of the code and provide advice about it. However, that is a very limited remit. There appears to be no provision for complaints about inappropriate use of surveillance cameras. There is currently an investigatory powers tribunal that deals with complaints under the Regulation of Investigatory Powers Act. It has received 1,120 complaints in 10 years and has upheld only 10. Five of the 10 were upheld in 2010 in respect of members of one family who complained about unlawful surveillance by a local authority. In only six other cases in 10 years has surveillance been found by the tribunal to be unnecessary or disproportionate. This is in the context of some 2.7 million surveillance decisions.

Clause 37 is an attempt to regulate the use by local authorities of surveillance powers by requiring the authority to seek judicial consent for such activity. The Minister articulated the disproportionate use of such powers in his opening address. It is right that there should be a requirement for judicial authorisation. It has been suggested that the police and other public authorities should be subject to a similar control mechanism following the revelations of very long-term surveillance by the police in the context of public protests and campaigns.

Clause 37 gives the Secretary of State power by order to require judicial authorisation for surveillance by other public authorities. The Regulation of Investigatory Powers Act already requires a complex process for authorisation and discontinuance of the use of directed surveillance. There is a very significant problem that lies not in the authorisation process, which requires significant thought, process and decision-making both to initiate and terminate surveillance activity, but in the mechanism created under RIPA for the regulation of surveillance activities. That process was described by the president of ACPO as,

“no longer sufficient to secure the confidence of right thinking people that such interference with citizens' rights (with its foreseeable collateral intrusion on many) is appropriate”.

There is a risk that when Parliament creates regulatory structures, it assumes that the job is being done. That is perfectly legitimate. However, changing circumstances may create an environment in which regulation becomes ineffective.

I will leave aside the operation of the Interception of Communications Commissioner and the Intelligence Services Commissioner. However, I will refer to the regulation of police activities that are overseen by the Office of the Surveillance Commissioner. The office comprises 26 people, including administration and support staff. They regulate, on an annual basis, the activities of some 60 organisations, including all police forces. On a biannual basis they examine some 25 organisations, and on a triannual basis they examine a further dozen authorities and more than 430 local authorities in England, Scotland and Wales. They are responsible for at least 500 organisations, some of which employ tens of thousands of people and have used RIPA powers on millions of occasions over the past 10 years.

The effective use of specified investigatory powers is critical to the fight against serious and organised crime. These powers have enabled some of the great triumphs of policing. Surveillance is a profoundly important tool. Properly used, it can result in the prevention and destruction of criminal activity, and the successful investigation leading to prosecution of crimes such as drug and people trafficking, money laundering and murder. The specific nature of the techniques and processes are rightly protected. However, because of the nature of the powers and the work in which officers engage when using them, there is international recognition of the risk of the corruption of those officers.

The regulatory process, among others, must be capable of acting as a check to the potential for such corruption, with all its attendant risks, by auditing the use of regulated techniques. I have seen situations in which RIPA was not complied with, despite the existence of extensive police command structures and the Office of the Surveillance Commissioner and its inspectors, resulting in the ongoing commission of serious crime by those being paid as informants by the state. In his annual report for 2010-11, the Chief Surveillance Commissioner indicated clearly that he had concerns about how the system was operating. He stated:

“I have commented in previous reports that there appears to be an over-reliance on the capacity of the OSC to examine authorisations. I remain concerned that my limited capacity is misappreciated ... My inspection capability is limited. The sample of documents which can be examined is small and the inspection can only be regarded as a ‘snapshot in time’; it is not an indicator of trends … In order to achieve a reduced budget for the financial year 2011-12 I have reluctantly reduced by capacity by one Inspector”.

He had seven inspectors to do all these inspections. Now he has one fewer. He has also reduced the secretary post and downgraded a further post. He states:

“My capacity has always been limited and I wrote to the Home Secretary to explain the impact of reducing my budget ... I recognise the severity of the country's financial situation but a reduction of nine percent has serious operational repercussions in a tiny organisation”.

This organisation has responsibility for protecting the freedoms of people in this country. The Bill presents an opportunity to address these issues.

I suppose my question is, “Must we wait until there is another scandal, as there inevitably will be?”. I would like to endorse the suggestion of the noble Baroness, Lady Doocey, that it would be possible to place the office of Surveillance Commissioners and the Commissioner for the Retention and Use of Biometric Material in the Office of Surveillance Commissioners, thereby avoiding the creation of two new quangos in a term in which we are dealing with the Public Bodies Bill and also ensuring the economies of shared services. Could the Government also make a decision to review the office of the OSC and of the Investigatory Powers Tribunal and in the interim to enhance the budget, so that these regulatory processes will more effectively enable the ongoing protection of the country?