Draft Regulation of Investigatory Powers (Interception of Communications: Code of Practice) Order 2002

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Mr. Richard Allan (Sheffield, Hallam): We, too, shall not oppose the regulations, which in many ways cover the most straightforward aspect of RIPA. The provisions extend the highest level of warrant available for intercepting communications before that authorised by the Secretary of State. The controversy in the RIPA debate was on the new powers that could be exercised at a lower level, and the section 8 warrants were not the major focus of concern. However, I welcome two clarifications in the code of practice. The first is paragraph 2.4, which is an explicit statement on necessity and proportionality. We want those tests to be applied to all intrusions on privacy, and we welcome the clear statement that obtaining a warrant must be consistent with article 8 of the ECHR, which refers to the right to privacy. It is helpful for that to be set out in the code of practice.

The second clarification is paragraph 4.4 on the definition of economic well-being, a subject raised by the hon. Member for Beaconsfield (Mr. Grieve). The issue caused us concern in Committee. BMW was making decisions on Rover, and we used that example to test whether the Secretary of State had powers to intercept communications. There was debate about whether it would be appropriate to bug the BMW boardroom because of the effect of any decision on Rover on the economic well-being of the United Kingdom.

I welcome the clarification, which suggests that bugging BMW simply in respect of the future of Rover would not have been authorised under the powers, because Rover was not essential to state security. We

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are discussing the ability to bug people when, for example, they might threaten the entire UK banking system or financial network, which could be deemed an economic terrorist attack. I hope that the test is being set at that higher level. The clarification of economic well-being in paragraph 4.4 sets at a high level the threat required before the powers can be exercised. It explicitly states:

    ''The Secretary of State will not issue a warrant . . . if this direct link between the economic well-being . . . and state security is not established.''

That answers some concerns that were expressed in the Committee considering RIPA.

My additional concerns are on who pays for the interception, which we also discussed at the time and which is still relevant. We are extending the ability to intercept communications to a much larger target group of communications service providers, as the new definition covers anyone who provides such services. In the good old, bad old days, one thought of BT and other large suppliers of telephony services. The regime worked and BT had no problem complying with requests to provide interception capabilities, which at times were quite onerous.

We are now in a world with many smaller communications service providers. I do not think that a single internet service provider in the country does not want to assist the law enforcement agencies to pursue people accused of serious crime or who pose a threat to the UK through terrorism or suchlike. They are willing, but their abilities are slightly less than those of a BT, shall we say, because of their finances. We want to test how, under the code of practice, the Government will make reasonable approaches to communications service providers and judge their responses to be reasonable.

Paragraph 2.7 is headed ''Provision of Reasonable Assistance'', and under it the Secretary of State's ultimate safeguard is

    ''to press forward with civil proceedings''.

I am sure that he hopes that matters will not come to that, as do the communications service providers. Does the Minister have anything to offer on his Department's discussions with CSPs on keeping the requests economically reasonable for a small internet service provider, as opposed to a large BT-style company?

Paragraph 2.9, on ''Provision of Intercept Capability'', is a related point. We discussed that in terms of black boxes that CSPs might be required to put in their networks to intercept communications. The paragraph mentions the Technical Advisory Board, which was a Government concession in Committee on RIPA. Under it, if a CSP believes a request to be unreasonable in terms of maintaining an intercept capability, it can go to the TAB.

We have no evidence on the costs, however. The request may be reasonable, but expensive. The CSPs may be asked to provide the service, which they would not oppose on technical grounds, but that would impose a cost burden on them. How will those costs be

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shared between the client who wants the information—the Government—and the CSP, which has a legal duty to co-operate and provide it? The cost questions on paragraphs 2.7 and 2.9 are of interest.

What will happen if anything goes wrong? That is always worth bearing in mind, especially considering the special rules in the third section of the code. Certain categories of information should not be collected. To what extent have we sorted out the procedures that would apply if an individual wanted to raise queries with the Interception of Communications Commissioner? That is a difficult area, because an individual is not notified that his communications are being intercepted, yet he may have reason to believe that excluded categories of communication may have been intercepted unreasonably. Will the Minister clarify the route whereby an individual could pursue such a case?

''Collateral intrusion'' is a wonderful phrase. It is probably accurate, but it is somewhat ugly, reminding me of ''collateral damage''. It refers to the collateral damage of an interception of communications where, for example, we go looking for communications from villain A, but pick up communications from innocent citizens B, C, D and E. If those innocent citizens have subsequent reason to believe that, in spite of all the safeguards, their communications have been intercepted inappropriately under the code of practice because the interception was wider than necessary, and if they believe that they have suffered damage as a result, is there a route whereby they can complain to the Interception of Communications Commissioner about that collateral intrusion?

It would be helpful if the Minister clarified that, because data trawling is one of the major concerns. I know that interception warrants are not supposed to allow that, but it would be helpful to reiterate here that data trawling is unacceptable, although it might happen occasionally, in spite of the best efforts of the Secretary of State. The individual citizen needs some redress if that occurs.

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Mr. Keith Vaz (Leicester, East): I, too, welcome the code of practice, and I am grateful to the Minister for the way in which he introduced it. I seek reassurance on a couple of points. The first concerns communications between individuals and their legal representatives. Paragraph 3.3 refers to

    ''matters that are subject to legal privilege.''

Although I have not practised for 11 years, as a barrister, I know of situations in which people contact their legal advisers and want reassurance that that confidential relationship is protected. I realise that the code refers to circumstances in which lawyers might use information for illegal purposes, but will the Minister give us a categorical assurance that the principle of privilege between client and legal representative will be retained? Will he also reassure me that the Government have consulted the Law Society and the Bar Council on those matters, and inform the Committee of any representations that he has received?

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The hon. Member for Sheffield, Hallam (Mr. Allan) raised the issue of third parties. I can imagine the situation in which someone subject to a warrant phones an MP because he is in difficulty. That means that the MP, as a third party, would also be subject to someone listening in on that conversation. I do not want to be dramatic, but I watched the BBC's programme ''Spooks'' last week, which has perhaps alerted me to considering these matters more carefully. Will the Minister reassure us on the position of innocent third parties?

On paragraph 10.3, I cannot understand why a warrant is necessary if the people sending and receiving the communication consent to its interception. If they both consent, they will happily provide a copy or a recording of the interception. I am also worried about the definition of ''reasonable grounds'', and think that it should be much stronger. Consent should be express rather than implied, because the people doing the investigating might think that what is going on is reasonable, despite the fact that neither party has consented. The possibility of such mistakes occurring may pose problems.

Mr. Allan: My recollection of the Committee debates on that part of RIPA is that the Bill originally made illegal all forms of interception, even when it made no sense do to so. For example, if a teenager was talking on a telephone upstairs and the parents listened in on the downstairs extension, they would have breached the criminal law. The Government were trying to clarify the notion of implied consent, so that people with several extensions in the family home would not have to worry about breaching the law every time they picked up the phone.

Mr. Vaz: I am most grateful for that, but we still must consider what is reasonable and what might be reasonable grounds for people to believe that consent has been given to an interception. For instance, and following on from the hon. Gentleman's example, if a parent is listening in or has simply picked up a telephone extension in a household where someone is subject to a warrant, will implied consent have been given? Perhaps the Minister will clarify that.

We now come to the Secretary of State signing the warrant. In this age of mass communications and all these e-materials, if a case has been discussed with the Secretary of State, I do not see why he or she cannot sign electronically, even if he or she happens to be in Buenos Aires, as suggested by the hon. Member for Beaconsfield. Those are serious matters. If they require the consent of the Home Secretary or whoever, and the case has been discussed with him, I see no reason why he cannot put down his consent electronically.

 
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