First Standing Committee on Delegated Legislation
Tuesday 13 March 2001
[Mr. Peter L. Pike in the Chair]
Draft Regulation of Investigatory Powers (British Broadcasting Corporation) Order 2001
The Minister of State, Home Office (Mr. Charles Clarke): I beg to move,
That the Committee has considered the draft Regulation of Investigatory Powers (British Broadcasting Corporation) Order 2001.
The Chairman: With the permission of the Committee, with this it will be convenient to consider the draft Regulation of Investigatory Powers (Designation of Public Authorities for the Purposes of Intrusive Surveillance) Order 2001.
Mr. Clarke: On behalf of the Committee, I welcome you to the Chair, Mr. Pike. The two draft orders are made under the Regulation of Investigatory Powers Act 2000. They were considered and agreed in the other place last Friday. I shall deal with both instruments.
The BBC order is made under section 47(1) of the Regulation of Investigatory Powers Act 2000. It applies part II of the Act, with modifications, to the carrying out of surveillance to detect whether a television receiver is being used in any residential or other premises. It provides specific statutory control for a specific type of surveillance. We expressed our intention to bring forward the order last year in the other place. The then RIP Bill was amended to exclude from the definitions of intrusive and directed surveillance in part II surveillance for television licence detection purposes undertaken on behalf of the BBC. At the time, we did not think that such activity properly came under either definition. The relevant provision is at section 26(6).
However, at the same time, we considered that such surveillance should be subject to statutory control. The Committee will recall that the whole purpose of the RIP Bill was to make surveillance by a range of different organisations subject to proper statutory control in accordance with the Human Rights Act 1998. The BBC's view, which the Government share, is that if television licensing's detection activities interfere with the rights protected by article 8 of the European convention on human rights, such interference could be justified in terms of article 8(2), for example, for the prevention of crime as licence evasion constitutes a criminal offence. However, article 8(2) of the ECHR also requires an activity to have an express legal basis. The order provides that basis.
The order will modify part II of RIPA to provide for authorisation to be granted in relation only to the detection of television receivers by persons holding certain senior positions within the licence fee unit of the BBC. They must be satisfied that an authorisation is necessary for preventing or detecting certain offences under section 1 or section 1A of the Wireless Telegraphy Act 1949. The type of offences covered would be having a television with no valid licence or for assessing or collecting sums payable in respect of television licences. Those are the only grounds on which authorisations may be given. The order is not a general charter in relation to the BBC; it concerns specifically licensing functions. As with other surveillances, the proposed surveillance must be proportionate to what is sought to be achieved by carrying it out. Last year, during consideration of the RIP Bill in Standing Committee, we discussed at length the meaning of proportionate and how it could be dealt with and understood.
I stress that such surveillance is to be carried out from outside premises. Authorisations to carry out such surveillance will be time limited and last for a maximum of eight weeks. Responsibility for overseeing surveillance in relation to television licence detection on behalf of the BBC falls to the chief surveillance commissioner by virtue of section 62(1)(a) of RIPA. The Act provides for an additional right of redress for the individual who can complain about that activity to the independent investigatory powers tribunal by virtue of section 65(5)(d). The order is an extension of RIPA to ensure that the human rights clarification for surveillance, which is being carried out principally by television detector vans, has proper legal authority and is properly legally authorised in all cases.
The second order relating to the Prison Service is made under section 41(3) and (4) of RIPA. The Committee will note that that is part II surveillance territory. It is not about interception of communicationsfor example, telephone and e-mail tapping. That is regulated by provisions under chapter I of part I of the Act.
The order designates the Home Office as a public authority that may make an application to carry out intrusive surveillance under part II. It addresses the needs of the Prison Service, which has come to the view that it requires statutory cover under RIPA for intrusive surveillance operations. Under part II, intrusive surveillance is covert surveillance carried out in relation to residential premises or private vehicles. The definition of residential premises in section 48(1) includes prison cells. There may be occasions when such surveillance by the Prison Service is considered necessaryin prison hostage situations, for example. The use of covert surveillance techniques may be necessary to gain an accurate assessment of the situation and safeguard the lives of hostages.
The order would enable the Prison Service in England and Wales to apply for authorisations to conduct intrusive surveillance. It designates the Home Office as a public authority whose activities may require the use of intrusive surveillance and specifies that, within the Home Office, only Prison Service staff may make an application to use the power. The order is constructed in such a way because the Prison Service does not have separate legal status.
In clarification of a point raised in another place on 9 March, I can inform hon. Members that applications to carry out intrusive surveillance operations in prisonsincluding contracted-out prisonsfalling under the relevant definition in section 26 of RIPA, must be made by persons by authority to make such applications. Her Majesty's Prison Service staff, for example, are specified in the order.
Part II of RIPA provides that authorisations permitting the Prison Service to conduct intrusive surveillance are to be given personally by the Secretary of State, who must be satisfied that such actionas we discussed in relation to the BBCis necessary on one of the grounds listed in section 32(3) and proportionate to what is sought to be achieved by carrying out the surveillance. As with the rest of RIPA-authorised activity, those are important tests. In considering the circumstances of the individual case, the Secretary of State must consider whether the information thought necessary to be obtained could reasonably be obtained by any other less intrusive means.
The statutory tests governing the use of intrusive surveillance are narrowly drawn. That must be right. In practical terms, use of intrusive surveillance by the Prison Service will be subject to a code of practice that will set out, among other things, safeguards relating to access to confidential information. Authorisations will last for a period of three months unless granted orally, in which case they will last for a period of 72 hours, unless renewed. Responsibility for overseeing the use of intrusive surveillance by the Prison Service again falls to the chief surveillance commissioner by virtue of section 62(1)(a) of RIPA. Under section 65(5)(d), the Investigatory Powers Tribunal is the appropriate forum to which to address complaints about that activity.
The draft orders represent a further move to tie specific types of surveillance in the regulatory regime that we have established under RIPA. In my view, both orders are compatible with the rights set out in the European Convention on Human Rights, and both establish a proper rights regime for this kind of surveillance to take place.
I apologise for introducing the orders at such length, but it is important to set out the background to Government thinking fully before we debate them.
Mr. Oliver Heald (North-East Hertfordshire): I join the welcome to you, Mr. Pike.
The Opposition welcome the orders. The BBC order is completely uncontroversial, as it is clearly right that licence-evader detector vans should be able to go about their work. The extra safeguards that the order provides are welcome and sensible.
One or two points were raised in another place in respect of the Prison Service, which I will test a little further with the Minister. He said that the provision would apply to an individual holding officer rank or a position with the Home Office when that officer rank or position is prescribed by article 3, which refers to
``all officers, ranks and positions in Her Majesty's Prison Service.''
However, he also referred to contracted-out prisons. A concern was expressed in the other place as to whether that applied to private sector organisations that provided prison services to the Home Office. Will he amplify the point a little? That would help to deal with a point raised in the other place by the noble Lord Goodhart.
The order refers to all the ranks, whereas, in respect of the police, sections 32 to 40 of the Regulation of Investigatory Powers Act 2000 refers to a particular authorising officer at a particular level in the police service. Is the Minister thinking in terms of the prison governor or deputy governor as being the appropriate rank in the Prison Service?
Jackie Ballard (Taunton): I shall be brief because I want to make similar comments to those made by the hon. Member for North-East Hertfordshire (Mr. Heald). Like him, we have no problem with bringing the BBC's use of surveillance to catch licence fee dodgers under the regulatory regime. The hon. Gentleman drew attention to the debate in another place and the questions asked by my noble Friend Lord Goodhart. I would like to reiterate one of those points, and add another that was made by Lord Goodhart about intrusive surveillance within the prison system.
The Minister used the example of hostage taking or some other disorder in the prison system in which bugging or other intrusive surveillance in cells would be not only justified but necessary. First, there appears to be no limit to the number of applications that can be made from any one establishment at any one time. As the hon. Member for North-East Hertfordshire said, under the regulations, any officer from any rank or position within the Prison Service can apply for an intrusive surveillance order, although, clearly, it would be subject to a decision by the Home Secretary. My noble Friend Lord Goodhart also asked whether it would first have to be authorised by someone of the rank of governor or deputy governor. That is a reasonable point because of the sheer administrative burden that would be imposed if any prison officer were able to make such applications, let alone the lack of control that that would imply. As Lord Goodhart said, such powers seem much more open-ended than those available to the police for intrusive surveillance. Clearly, that causes concern. Will the Minister also explain how the powers under the regulations differ from current practice?