Protection of Freedoms Bill

Viscount Simon Excerpts

Tuesday 13th December 2011 Grand Committee

[Lord Henley]

My Lords, just to make sure that I get things right, I should make it clear that it is my understanding from the intervention from the Deputy Chairman of Committees that we are dealing with Amendments 115 and 120 to 128, but not with those in the name of my noble friend Lord Phillips, which start at Amendment 116, those being a separate group.

[The Deputy Chairman of Committees]

Amendment 122 is in the second group.

[Lord Henley]

I take that correction. I do not know how long we will spend finishing off this amendment, but perhaps this one or the next should be the last one that we deal with today, because I think we have made pretty good progress. We have will have a relatively short list of amendments to discuss for the next day and will have no problem finishing off Committee stage when we return after Christmas.

I am grateful to both my noble friends Lady Miller and Lord Selsdon for setting out their arguments in support of these amendments and I shall briefly deal with them. I start with Amendment 115 and the amendments associated with it—Amendments 120, 121, 123, 125 and 127—which leave out “relevant” or “relevant person”. We are introducing a judicial approval mechanism to restore public confidence in local authorities’ use of covert techniques. Local authorities will no longer be able to self-authorise or to use directed surveillance in trivial cases, thereby further safeguarding personal privacy. Such public concern does not exist for the use of covert techniques in cases of serious crime or national security. In a judicial review it will be for the magistrate to approve the authorisation for local authorities to use such techniques only where he or she believes that use of the technique would be both necessary and proportionate.

Imposing judicial approval on all public authorities, law enforcement and intelligence agencies, which the amendment of my noble friend Lady Miller seeks to do, could seriously impair the operational effectiveness of such organisations. Having to seek a magistrate’s approval may, given the extent to which such techniques are used, result in operational delay, which could have grave consequences. Furthermore, it is wholly inappropriate for the sensitive nature of these cases to be disposed to a local magistrate.

RIPA authorisations for the most sensitive techniques, such as intrusive surveillance and interception, which may be used only by law enforcement and intelligence agencies, are already pre-approved by a surveillance commissioner or the Secretary of State. The Government will continue to keep the use of RIPA under review and respond in the most appropriate way if there is evidence of misuse. If in the future there is a compelling case for extending the requirement for prior judicial authorisation for certain other public authorities, these clauses confer an order-making power to enable this to happen.

On the second part of Amendment 128, my noble friend Lady Miller suggested that there should be a further review by an independent reviewer. I appreciate that the concern behind the amendment is that the Act is now some 10 years old and that the pace of technological development during this time has been unparalleled, a point to which my noble friend Lord Selsdon referred. I agree that how this legislation is performing and keeping pace with these developments is something on which we would naturally all seek assurance.

At its heart, RIPA is human rights legislation; it contains human rights safeguards to ensure that it carries on working as Parliament intended. Those safeguards include the appointment of independent bodies to oversee, inspect and redress wrongs. As the Committee will be aware, there are three independent commissioners—all of whom have held some of the highest judicial offices in the land—to examine various aspects of how RIPA is working and to publish their findings. Their inspection teams visit public authorities using RIPA powers and provide valuable advice on interpreting the law correctly, and surveillance commissioners authorise some of its more invasive techniques. In addition, those commissioners produce annual reports on their findings which are laid before Parliament each year. So we already have an effective mechanism for ongoing scrutiny and reporting the findings to Parliament. The commissioners will continue to inspect local authorities and will report on how the judicial approval provisions are working in practice.

As to the wider question of changing the law to permit intercept material to be used evidentially—which is currently prohibited by Section 17 of RIPA—that is already being independently reviewed by Sir John Chilcot, who is leading a cross-party group of privy counsellors to examine how a model to permit this could work in practice. The Government will bring the subject before Parliament again once the cross-party committee has finished taking evidence. When it does so is a matter over which I have no control, but I look forward to being able to debate these matters in due course.