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

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Mr. Grieve: That is a perfectly good point. Indeed, if it can be done, it would be sensible. My concern is that it might cover a fudge—one that could blow up in the Secretary of State's face if it is suggested that a rubber-stamping of his verbal approval was given when in fact he did not apply his mind to it.

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Mr. Vaz: Although I am a lawyer, and even though I no longer practice, I can see lawyers making a lot of money from judicial review cases and inquiries into whether the Secretary of State gave approval while busy at a conference in South America. I can see a poor senior official being dragged before a future Scott inquiry to be asked whether consent was given. If the Secretary of State is prepared to give an agreement, he should sign for it. I am sure that everyone who holds high office would be happy to do so in such circumstances.

4.57 pm

Mr. Ainsworth: I shall do my best to answer the questions raised today, but if my answers do not satisfy hon. Members I shall reply in writing, giving further details of how the code of practice is intended to operate.

The first point raised by the hon. Member for Beaconsfield was about the difference between the time allowed for national security and for criminal cases. It is felt that, as a generality, terrorism cases are likely to last longer. It is self-evident that criminal cases will occasionally take longer than the three months laid down in the Act and that an extension will be needed, but records show that the relevant times allowed for extensions are appropriate to the intercept provisions. We do not want longer than is thought to be absolutely necessary, and the differential is based on advice on how long those necessary intrusions should be in criminal and national security cases.

On whether the Data Protection Act has an impact on the ability to seize information stored on electronic systems or in any other way, there are powers under the Police and Criminal Evidence Act 1984 to seize computer equipment and the information thereon. There are provisions in the PACE codes that stand outside and are separate from the data protection provisions. The powers to seize such information exist, but the powers under RIPA are fundamentally designed to enable the interception of ongoing transactions. Stored information, be it on an answerphone or in the memory of a computer, can be dealt with under PACE in the normal way, as can warrants for the seizure of other goods, information and equipment.

The economic well-being category still exists, despite having been related to the national security or the state security category, because that terminology is provided for in the European convention on human rights and in the legislation. The code of practice cannot rewrite the legislation; it can only clarify it. As the hon. Member for Sheffield, Hallam said—the hon. Member for Beaconsfield knows this—the code is designed to limit the ability to conduct intercepts related to considerations of economic well-being to those cases where serious national and state security issues are raised. It is designed to clarify what does and does not come within the ability to intercept.

All we are trying to do is clarify the existing statute. We cannot rewrite that statute with the code of practice, but we can spell out clearly what does and does not come within the intercept capability under the

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heading of economic well-being. The clarification is designed to show when that is justified and when it is not, and the examples used by the hon. Member for Sheffield, Hallam point up the issue quite well.

I welcome the way in which the hon. Member for Beaconsfield raised the issue of urgent situations. He is right not to allow us to be lured into not intending to follow the code of practice, and therefore potentially leaving people open to allegations that the code has not been followed and that the intercept has not been properly authorised.

We do not intend officials to be able to gain even emergency access to that level of intercept without the approval of the Secretary of State. They will not be able to sign it off and go back for approval within a certain period. A senior official must sign the intercept in emergency situations when the Home Secretary is not available, to show that the Home Secretary has been made aware of the details and has given his approval. One reason for the provision being worded in such a way is that there may be circumstances in which it is very difficult to contact the Home Secretary. In such instances, it is envisaged that another Secretary of State will give the authorisation. There is no question of an official acting on his own and then going back for approval.

Mr. Grieve: I am grateful to the Minister, because I was about to intervene on precisely that point. I know from experience that the wording of those rules allows any Secretary of State to provide such authorisation. That is why the provision does not specifically mention the Home Secretary, and all the statutory provisions that I have ever seen say the same thing. Returning to the point made by the hon. Member for Leicester, East (Mr. Vaz), why is the provision required in circumstances where the authorisation cannot be signed? I accept that there are circumstances in which that could be done using a secure telephone line, but the possibilities of electronic signature seem to be relevant.

Mr. Ainsworth: We are covering the point at which extreme circumstances make it impossible to obtain the prior signature of the Secretary of State while making it clear that we do not intend post-approval to be given by the Secretary of State. The signature must be given to show that there has been communication and that the Secretary of State has given prior approval orally, which must be followed up in the five-day period. We intend that to be strictly applied, which is why the code spells it out.

I think that I have covered the points raised by the hon. Member for Beaconsfield. On costs, the hon. Member for Sheffield, Hallam pointed out that the industry has changed considerably and is much more diverse in structure. The intercepting agencies already make payment for the cost of the individual intercepts. We are mainly discussing with the industry the cost and practicalities of the size of the intercept capacity. The reasonableness of any request made for an intercept will be related to the capacity that the

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intercept provider is obliged to keep, so the hon. Gentleman is right to link the two points. I should point out that it is somewhat difficult to respond to a Member who served on the Committee considering the Bill when I did not serve on it myself.

The matter is subject to another order that will be laid before Parliament in the near future, and the hon. Gentleman knows that we have established the Technical Advisory Board. The service provider can appeal to the board if it is unhappy with the capacity required of it. Individual warrants will be paid for, but they will be reasonable within the capacity provided. Of course, ultimate recourse to the courts remains, as the hon. Gentleman rightly points out, but capacity is the main issue that we are discussing with the industry.

Mr. Allan: That is a helpful response from the Minister. I do not want to stray too far into another order, but I hope that the explanatory notes provide a clear indication of the Government's expectation of cost burdens, so that we are not left with conflicting, irreconcilable views, as we sometimes are in the House. It is often helpful to have an authoritative view alongside an order rather than figures that are bandied around separately.

Mr. Ainsworth: We are obliged to give regulatory impact statements when we lay orders before the House, and we shall do so as clearly as we can in that case. However, some dispute about the costs of provision is almost inevitable between those who are asked to provide and those who ask them. We must balance that in the capacity that we ask of the providers and justify what we have done when we lay the other order.

The hon. Gentleman asks what recourse people have—either the individuals themselves or third parties, who are effectively subject to intercept—to the commissioner. It is not the commissioner's role to hear representations from people in that way. The commissioner merely oversees how the system operates, the authorisations that are given and how they are reported to the Secretary of State. He also ensures that the powers are being used correctly. However, as the hon. Gentleman may recall from his time on the Committee that considered the Bill, the Investigatory Powers Tribunal will consider any complaint by any individual, whether he is the person who was targeted or a third party—a collateral to the process. It is for the tribunal to consider any complaints that may be made against the imposition.

My hon. Friend the Member for Leicester, East mentioned legal privilege. There are no excluded categories of intercept, but the agency that requests the intercept is required to report the categorisation of exactly what it expects, and all the information available to it, to the Secretary of State. That is so that he can take a decision that is proportional to what has been requested. He may also consider whether there are alternatives and the size of the issue raised.

As my hon. Friend pointed out, there are clear cases when legal advice can and probably should be intercepted, and when the legal representative is effectively involved in illegality, knowingly or

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unknowingly. If it is expected that an intercept will involve a legal representative, the agency is obliged under the code to make the Secretary of State aware of that, so that he accounts for the intrusion on legal advice when deciding whether the intercept is justified and proportionate. There are no exclusions. There is an ability to intercept in those circumstances, but proportionality must be reported to the Secretary of State. The commissioner must also consider how approval was given, whether it was given in the right circumstances and whether it was justified.

The subject of paragraph 10.3 and non-warrants was raised. I do not know whether there is some confusion, because my hon. Friend asked why warrants would be needed if we knew that people were complying and were happy with intercepts taking place. He will recognise that paragraph 10.3 covers intercepts without a warrant. The hon. Member for Sheffield, Hallam suggested reasons for including that

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paragraph. Without it, all intercepts without a warrant would effectively be illegal, even when the situation is clear and both parties have given their consent. A defence that can be used is that it is reasonable to believe that both parties have given their consent. No warrant is required in those circumstances, but the paragraph is necessary to justify things that happen on a regular basis in the commercial and private world.

I do not know whether I have satisfied all hon. Members on the points that they raised. If not, and if they have supplementary questions, we can follow that up now or perhaps later.

Question put and agreed to.


    That the Committee has considered the draft Regulation of Investigatory Powers (Interception of Communications: Code of Practice) Order 2002.

        Committee rose at thirteen minutes past Five o'clock.

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The following Members attended the Committee:
Adams, Mrs. Irene (Chairman)
Ainger, Mr.
Ainsworth, Mr. Bob
Allan, Mr.
Clwyd, Ann
Francois, Mr.
Gillan, Mrs.
Grieve, Mr.

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Henderson, Mr. Ivan
Iddon, Dr.
Jenkins, Mr.
Jones, Mr. Kevan
Liddell-Grainger, Mr.
Pollard, Mr.
Quin, Joyce
Vaz, Mr.

The following also attended, pursuant to Standing Order No. 118(2):

Flook, Mr. Adrian (Taunton)

Hamilton, Mr. Fabian (Leeds, North-East)

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