Regulation of Investigatory Powers (Covert Surveillance and Property Interference: Code of Practice) Order 2014

Lord Bates Excerpts

Monday 10th November 2014 Grand Committee

Moved by

[Lord Bates]

That the Grand Committee do consider the Regulation of Investigatory Powers (Covert Surveillance and Property Interference: Code of Practice) Order 2014.

Relevant documents: 8th Report from the Joint Committee on Statutory Instruments

[The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)]

My Lords, these orders bring into force revised codes of practice under Part 2 of the Regulation of Investigatory Powers Act 2000. The codes of practice have been revised to reflect changes that the Government have made to the Part 2 provisions on covert surveillance and the use of covert human intelligence sources since the codes were last revised in 2010. The codes also give guidance on property interference, an action which necessitates authorisation under separate legislation, but which will often form part of a wider covert operation.

I believe it is accepted that, faced with the sophistication of the methods employed by modern-day criminals, our law enforcement agencies sometimes need to operate covertly in order to prevent or detect serious crime, but those powers must be deployed extremely carefully and properly balanced against individual rights, including the right to privacy.

The Regulation of Investigatory Powers Act 2000, or RIPA as we know it, provides a statutory framework for public authority use of a number of covert techniques likely to acquire private information, including the techniques covered by the codes of practice concerned here, and ensures that their use is compatible with an individual’s right to privacy.

The Act provided a number of safeguards to prevent misuse of the powers, including clear authorisation procedures and independent scrutiny of the use of the powers by the Office of Surveillance Commissioners and the Intelligence Services Commissioner. RIPA and its associated codes of practice have greatly improved control and oversight of how public authorities use covert investigatory techniques. However, the Government keep a close eye on the regime to ensure that it is working as intended and, when improvements have been identified, we have acted to put these into place. I will briefly outline the main changes which have been incorporated into these revised codes.

First, in response to concerns about use of covert surveillance by local authorities to investigate relatively minor matters in England and Wales, local authorities’ use of these powers has been restricted so that they can now use directed surveillance only to investigate criminal offences which either attract sentences of at least six months’ imprisonment or relate to the underage sale of alcohol or tobacco. In addition, in all cases, decisions by local authorities to grant or renew the authorisation of covert techniques will only take effect once an order approving the authorisation has been granted by a justice of the peace. These changes were made in Part 2 of the Protection of Freedoms Act 2012.

To improve confidence in the decision-making and authorisation of undercover deployments, RIPA has been amended to allow an independent body, the Office of Surveillance Commissioners, to provide enhanced oversight of all undercover law enforcement deployments. Law enforcement agencies are now required to notify the surveillance commissioners of an undercover deployment at its outset and must seek prior approval from the commissioners for all deployments that last longer than 12 months. We have also increased the rank at which undercover deployments are authorised.

The revised codes were the subject of a public consultation exercise in February and March this year. We received responses from 126 organisations and individuals, details of which we will publish on the Home Office website, following an undertaking given by us during the debate on these orders in another place, once we have obtained permission from the respondents. The consultation provided additional recommendations for changes to the codes.

One of the main concerns related to undercover officers forming inappropriate relationships in the course of their duties. To address this, the College of Policing has issued a code of ethics which states clearly that officers must not engage in sexual conduct while on duty, and shall not establish or pursue an improper sexual or emotional relationship with a person with whom they come into contact in the course of their work. The revised Covert Human Intelligence Sources code of practice in turn specifies that all police officers deployed as undercover officers in England and Wales must, of course, comply with and uphold the principles and standards of professional behaviour set out in the code of ethics.

I turn to other changes. The Covert Human Intelligence Sources code also includes a clarification that law enforcement agencies must seek an authorisation when developing a cover persona, an activity known as “legend building”, if the activity will interfere with an individual’s Article 8 rights. This change was made to ensure consistency and that proper consideration is given to privacy and proportionality in all undercover deployments, irrespective of the nature of the deployment. The HMIC report into undercover policing published on 14 October highlighted this as a concern and I am pleased that we have already taken steps to address it. In addition, in response to feedback, a number of more technical amendments have been made to the codes to provide greater clarity for those authorising and using covert techniques.

The changes that I have described today clarify the way in which the law enforcement agencies can use these intrusive powers, and consolidate the changes we have made to ensure that the right level of oversight and authorisation is in place. They ensure that the powers can be used only when it is necessary and proportionate, when it will help to keep us safe from harm. I commend the orders to the House.

[Baroness Smith of Basildon (Lab)]

My Lords, I thank the Minister for his explanation. He will be aware that there have been a number of debates on this issue over the past few years in your Lordships’ House. It is helpful to have the two codes of practice before us; it was also helpful that he set it all in context. However, as he will know, following the debate on what became fast-tracked legislation in the Data Retention and Investigatory Powers Act, or DRIP, it was agreed through our amendment in the other place, which the Government accepted, that there will be a full review of RIPA. As I think the Minister said, it has not kept pace with technology and there have been changes. Clearly, there needs to be a full review to ensure that it keeps pace with not just the technology but some of the problems that have arisen, which he also alluded to.

The Minister will also be aware, although he did not mention it in his comments, of the issue raised in debate on the Serious Crime Bill, when the noble Lord, Lord Strasburger, tabled an amendment about concerns regarding journalists and their sources being intercepted and accessed. We have had previous debates about his point about undercover police officers on covert operations having inappropriate relationships with people, particularly between male police officers and women. Regarding surveillance techniques, I think particularly of my noble friend Lady Lawrence, whose family was subject to surveillance that under no circumstances could ever be described as necessary or proportionate. There is clearly a need for guidelines to address that and, if guidelines are not adhered to or something goes wrong, a process by which those issues can be taken up. We certainly welcome seeing the new codes of practice, but I also hope that the Minister will confirm that all these issues will still be discussed and further considered when we have that full review of RIPA by David Anderson, the commissioner.

We have made it clear that there has to be a full public debate on this and I hope that the noble Lord will agree. We do the public a disservice if we stand back and say, “We need these powers”—and the Government do need such powers—“but trust us, everything will be okay”. We would bring the public into our confidence a lot more on these issues if we explained why we need such powers and how they will be used. The public would understand that but we have to do a lot more than just ask for their trust. There is recognition, and I am sure that the public recognise this as well, that covert surveillance or operations have to be undertaken. To suggest that in each and every case they are wrong would be completely to misunderstand their purpose, as I think the noble Lord made clear. Those operations are dealing with some of the most dangerous crime and serious criminals and are an essential part of policing. We are talking about drugs, trafficking, smuggling, sexual abuse and pornography. Often, as I am sure we will come to debate on the Government’s opt-out and opt-in proposals, that information is shared between countries and is an important part of putting together the jigsaw of the details of some of these international crimes, where there is cross-border communication that we can get only if we co-operate with other countries.

I was surprised that in the order there was nothing, unless I have missed it within the two codes of practice, distinguishing between long-term and short-term operations. I would make that a clear definition and perhaps do so on authorisations as well. Regarding some of the things that we expect police officers to do, my local paper ran a story about one officer who had infiltrated a drugs gang. As he got more and more information—he got excellent information that went to court—it was obviously putting him at risk. He ended up having to jump out of the window and run pretty quickly down the street to ensure that he was not caught while still acting under cover.

The two issues that we have raised before, which are largely recognised in these provisions, are the inappropriate use of powers, in regard to which I mentioned my noble friend Lady Lawrence, and inappropriate relations. If the Minister has not read it, I suggest that he reads a book that was written about in the Guardian magazine on 22 June last year. I kept a copy of its excellent article about the problems caused by that kind of covert surveillance when it got out of hand and the powers were abused.

We have two new draft codes of practice. What they and any review needs to address is, first, the safeguards to protect the public while addressing the balance and conflicts and, secondly, establishing and maintaining public confidence in the integrity of the process and system. That is difficult, because you are balancing liberty against security, and privacy against public safety. Those issues clash, which is why the guide is so important. I hope that the Minister will give me an assurance that the draft codes of practice will still be part of RIPA.

The Minister mentioned the consultation. I was a little surprised that he and Mike Penning in the other place gave different numbers; they were only one out, but the noble Lord said that there were 127 consultations, while the Minister in the other place said that there were 126. I went to the website to see what those consultations had said, because I thought it would be helpful to inform this debate if we could see the consultations—the Explanatory Notes say that most of the points were taken on board. However, I went to the website on Friday to be told:

“We are analysing your feedback. Visit this page again soon to download the outcome to this public feedback”.

However, the Minister said today that as a result of the question David Winnick asked of the Minister in the other place, Mike Penning, about whether it would be made public, he was told, “No problem; it can be”. Did the Government never intend to publish the consultation? They now have to go back to everybody who contributed to the consultation, which implies that there was no intention to publish it in the first place. From a personal point of view, I always find the publication of consultation responses extremely helpful in these kinds of debates. I am very disappointed that they have not been published. To suggest that the Government now have to spend money to go back to everybody to ask them if they mind their information being published does not seem to be the best use of resources or time.

I will ask the Minister a couple of questions on the code of practice, because I was not 100% clear about a couple of things. In the Covert Human Intelligence Sources Draft Code of Practice, a piece on page 9 refers to public officials who provide information to the authorities, and there is new guidance on that. Is all that guidance new, or has it been adapted from something that already existed? If a person is providing information—and not always information about an offence; often it is what you might call personal information; and whether or not they become a covert human intelligence source or just a source in the normal course of things—does it make it more likely that they will be reluctant to provide information because they know that they are registered somewhere, someplace, as a covert human intelligence source? I do not know whether you call that a CHIS. Does that make it more difficult for the authorities to obtain information in that way?

On page 19, paragraph 4.20, confidential constituent information is referred to as being confidential information,

“in relation to communications between a Member of Parliament and a constituent in respect of constituency matters”,

because that is held in confidence. Does that also apply to Members of the House of Lords? Although we do not have constituents as such, members of the public contact us about issues. Indeed, the Houses of Parliament website suggests that if you are not happy with the response from your MP, you can contact a Member of the House of Lords. Would we be bound by the same confidentiality as Members of the House of Commons and by the same provisions? That is not clear in that passage, as it specifically refers to Members of Parliament with constituencies.

I would also like a clarification about the authorisation criteria on page 22. The final one in the list says,

“for any other purpose prescribed in an order made by the Secretary of State”,

with the proviso that it has to enshrine the right to family life. Does that mean any order on any issue? It seems to be a very broad power; it would be helpful if the Minister could say something about that.

Finally, on the Covert Surveillance and Property Interference Draft Code of Practice, I have a query about how the role of the surveillance commissioners works. I do not know how many authorisations there are annually, but it would be very difficult for them to look at every case. Would they have to inspect a sample to see if they were happy that the code of conduct had been adhered to and that it was lawful, proportionate and necessary, or do they have to wait for a complaint? Under what circumstances would a commissioner look at the issue?

That brings us back to the guidance about proportionality. Again, the commissioner has been clear about the changes for local authorities, because there were cases when it was not proportionate; the changes to which he has referred are very helpful and we support them totally, but last week the noble Lord, Lord Strasburger, made the point about journalists. How is that affected by the code of conduct before us today?

Finally, I could not find anything about training, although I may have missed it because there are quite a lot of documents to go through and I did not know whether it was raised in the consultation. I refer to the training available to those who provide the authorisations and to those who seek authorisations, under either code. Will they receive any training on the new codes of conduct and the guidance that has been issued so that they know exactly what their responsibilities and obligations are?

I welcome the orders. Significant efforts have been made to address concerns that have been raised that any covert surveillance covered by either of the draft codes of practice is lawful, proportionate and necessary. The deal with the public is that any legislation that will be passed on surveillance is used only for the purpose intended—to make people safer against serious crime, including crime against the community, crimes which makes the community less safe. Terrorism is often mentioned in that context, and that is part of it—but that co-operation to deal with serious crime, whatever the purpose, is the aim. This provision goes some way to addressing that, but I look forward to a full review of all the issues that we have discussed. I hope that we can get to the point of having a proper public debate to ensure the integrity of the process that we need.

[Lord Bates]

I thank the noble Baroness for her questions, which, as usual, have gone into the detail in some depth. We are grateful for them because it gives us an opportunity to put more information on the record. I am pleased to see the noble Baroness, Lady Lane-Fox, in her place. I would guess that she was caught out by the pace at which the earlier business moved through, like the rest of us, but I hope that we may be able to take her points into consideration as part of an ongoing dialogue.

I shall try to go through the issues in the order in which the noble Baroness raised them. There is no requirement or convention to say that, when there is a public consultation, we should eventually publish all responses to it—for a variety of reasons, not least because sometimes people have given information that they do not wish to be made public. However, as soon as the intervention was made to which she referred, we said immediately that it should be published. We are in the process of going back to the 125 or 126 people—

[Baroness Smith of Basildon]

It was 127.

--- Later in debate ---

[Lord Bates]

We are going back to the 127 people who are in the course of responding, just to clarify the position. That will give further comfort to people that the process has been open.

I am pleased, too, that the noble Baroness welcomed the significant changes that have been made to the code. These highlight genuine concerns that people have had about these issues and raised in other legislative fora, and the need for us to take action.

The noble Baroness asked how often the powers are used. It may be helpful for the Committee to know that under Part 2 of RIPA and Section 8 of the Regulation of Investigatory Powers (Scotland) Act, in 2013-14 the number of authorisations by law enforcement for intrusive surveillance was 392; for directed surveillance it was 9,664, while for CHIS it was 4,377. Directed surveillance authorisations by other public bodies stood at 4,412 and for CHIS at 53. That is quite a large number, but those who are undertaking covert surveillance account for less than 1% of total police numbers. They are trained to be deployed but they are not necessarily all on active duty at any point in time.