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Baroness Williams of Crosby: My Lords, perhaps the noble and learned Lord will forgive me; I am not a

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lawyer. How far are the rights to undertake such surveillance limited to the purpose for which the agency was created? How far is it limited in such a way that those investigations cannot go beyond that particular purpose? Finally, does there need to be evidence to show that there may be reasons to believe that a criminal act—for example, in the case of an unregistered childminder—has been suspected, so that this is not an open mandate to that agency to investigate every household in which there may be children?

11.30 a.m.

Lord Goldsmith: My Lords, it certainly is not an open licence. Perhaps I may take the questions asked by the noble Baroness, Lady Williams, in two parts. First, are agencies limited to their own statutory functions? The answer is absolutely yes. They have the powers to carry out their particular functions and no others. I am grateful to the noble Baroness for asking the question. In addition to the requirement that surveillance should be necessary for one of the listed purposes, it must also be within the functions of that particular agency. In relation to a particular agency, there may be only one listed purpose—namely, the prevention of crime—and no other. There are several layers of requirement.

Secondly, surveillance must be necessary for that purpose and proportionate. I would not say that a particular agency might not take the view that it is necessary by reason of knowledge about an individual or that it is necessary to use the powers in a particular case. The agency would also need to be satisfied that it was proportionate to what was being considered. I would not go so far as to say that it must already have evidence of crime, but it would have to be satisfied that it is necessary for the purpose and proportionate to the use of that purpose. In considering whether it is proportionate, the agency would also have to consider whether there is some other way of obtaining the same information.

I hope that that at least goes quite a long way to reassuring the noble Baroness that these are strict and well defined requirements. I am grateful to her for giving me the opportunity to make the point that as well as the requirement in the Act—for example, the prevention of crime—each agency in each of these orders is limited by its own functions. We absolutely are not suggesting that the chief inspector should suddenly take on, for example, a roving brief to investigate any crime of any kind that he comes across.

Passing over the further examples that I offered to give—to which I will return if any noble Lord would like me to deal with those particular agencies or any other agency listed—we have also taken the opportunity to amend the definition of "local authority" so that it now excludes parish councils and a meeting of a parish council. That was following a recommendation made by the Chief Surveillance Commissioner in his annual report of 2001–02 to the Prime Minister. That

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undertaking was given in response to a Parliamentary Question answered by my right honourable friend the Home Secretary on 11th February 2003.

I turn now to the two issues with which I dealt under the first order. What about oversight? What about complaints? Oversight of the use of directed surveillance and the use of covert human intelligence sources falls, in the main, to the Chief Surveillance Commissioner by virtue of Section 62(1)(a) of the Act. That excludes those authorisations granted by the intelligence services, the MoD and Her Majesty's forces, which are overseen by the Intelligence Services Commissioner. Either way, there is oversight by a commissioner.

As regards complaints, again, the independent Investigatory Powers Tribunal is the appropriate forum to consider complaints. As I said on the first order, it has power to award compensation for unlawful use of powers against an individual.

Baroness Blatch: My Lords, does the noble and learned Lord agree that if one does not know an abuse has taken place, it is not possible to complain? For every case that has gone before the tribunal to date, no single case has been found in favour of the complainant.

Lord Goldsmith: My Lords, I am grateful to the noble Baroness for giving me the information in her second point; I was unaware of it. No doubt, it will be checked. I take that as very reassuring. It indicates that the independent tribunal has not found evidence of misuse. I noticed that one or two noble Lords were amused by that remark, which I hope was because it was apposite rather than surprising. It certainly seems a proper response.

Lord Elton: My Lords, perhaps I may return to a point the noble and learned Lord made before he was interrupted. He said that, within the context of the powers, the definition of a local authority had been changed to exclude a parish council or a parish meeting. Do we imply from that that these powers will be available to district councils?

Noble Lords: Yes.

Lord Goldsmith: My Lords, everyone on this side of the House is saying, "Yes". I shall come back to that question in case there is an issue in relation to it. I am told that the answer is yes: I am delighted to say that there is unanimity on that point. I shall come back to the issues about where local authorities, at whatever level, have a role to play under these orders. One of the examples given in the consultation paper on the access to communications data is that of trading standards officers concerned with protecting people who may be at risk from those who provide defective gas installations. That may be something that local authorities will be responsible for policing and on

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which will need some powers in order to protect people. I shall come back to that when we deal with access to communication data.

Lord Roberts of Conwy: My Lords, will the noble and learned Lord answer the first point of my noble friend Lady Blatch about how people will know whether there has been abuse or not?

Lord Goldsmith: My Lords, I am obliged. I did not intend to overlook that point. The noble Lord, Lord Elton, asked a supplementary question before I managed to answer the noble Baroness, Lady Blatch, fully. I want to deal with this issue more comprehensively. On looking at the powers of the oversight of the commissioner, we would expect commissioners to draw attention to abuses that they have discovered. I shall also come back to that issue later so that I can give a full answer. One of the difficulties of dealing with five orders together is the risk of moving from one to another. I want to be careful not to do that.

I repeat what I said in relation to the first order because it is apposite. It is another move to ensure that public authorities carry out their activities in a strictly regulated manner in a way that is consistent with the European Convention on Human Rights and Human Rights Act obligations. That is the purpose of the orders, which we believe they will achieve.

As we go through the orders, I want to make a general point. Of course, a great deal of the activity with which we are concerned is already capable of being carried out and is being carried out. In the orders, the Government are anxious to produce a strong regulatory framework, strictly regulated with requirements of necessity, proportionality and oversight. The whole framework of regulation should be ECHR compliant, which the 2000 Act sets down.

I turn now to the Regulation of Investigatory Powers (Communications Data) Order 2003. That was laid before Parliament on 11th September. It is made under Sections 21(1), 25(2) and 25(3) and Section 78(5) of the Regulation of Investigatory Powers Act 2000. Approval of this order will enable implementation of Chapter II of Part I of the Regulation of Investigatory Powers Act. In the Government's view, that will bring long overdue regulation to public authorities' acquisition of communications data and will improve the protection of individual privacy rights.

The use of data, such as telephone and Internet subscriber information, itemised billing records—even mobile telephone location data—is a vital tool in the prevention and detection of crime and, in some cases, saves lives.

Communications data is information about communications. It is about who called whom, and when. It is not about the interception of communications—this is an extremely important point about which I want to leave no doubt. It is not about what is said in telephone calls or written in e-mails or letters. That is already regulated quite differently and very tightly by Chapter I of Part I of the 2000 Act. We are not concerned here with the content of phone calls and e-mails.

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Parliament has already approved that certain authorities—the police, Customs and Excise, the intelligence agencies and the Inland Revenue—may, when the relevant provisions are implemented, use the Act to acquire communications data. The draft order designates additional relevant public authorities that may use the provisions. For all of these authorities, that is, both the existing authorities and the additional ones, the order restricts the purposes for which they can acquire data.

Further, the order will restrict the type of data that public authorities may acquire. Where an authority, or type of authority, has demonstrated a necessary and proportionate requirement for access to a type of data, the order provides for that, but not otherwise. It also restricts those persons who may use the powers to identified, designated senior authorising officers.

As I mentioned a few moments ago, I want to make clear a further point. The acquisition and use by public authorities of communications data is not new. Noble Lords have seen references to such access even this week, as we noted in the reports of a particular case. This activity already goes on, but it is not subject to the regulation set out in the Act; in effect, it is unregulated. Most of the public authorities listed in the draft order already seek communications data from communications service providers, using existing statutory information-gathering powers and by providers exercising exemptions to non-disclosure set out in the Data Protection Act 1998.

Some public authorities with statutory responsibilities for the investigation of specific offences have identified a necessary and proportionate requirement for acquisition of communications data in particular cases, but have chosen not to pursue that. Instead, they have elected to wait until they can demonstrate very clearly that they have assessed their requirements against the principles of the Human Rights Act 1998 and the convention, as the Regulation of Investigatory Powers Act explicitly requires.

The aim of the order, therefore, is to bring these public authorities within the strict control and oversight regime of the Regulation of Investigatory Powers Act. This means that all requisitions for the acquisition of data will have to be subject to the following requirements: first, they will have to be for a specific purpose, one that is drawn directly from the European Convention on Human Rights—such as the prevention of crime, matters of national security and so forth, as set out in the Act. Secondly, it must be necessary for one of those purposes—not simply desirable, but necessary. Thirdly, it must be proportionate to what is sought to be achieved by obtaining the data; a balance will have to be struck between the potential importance and the degree of intrusion. Finally, it will have to be authorised by an officer at a specific and senior level within the public authority.

The exercise of these powers will be subject to oversight by the Interception of Communications Commissioner, Sir Swinton Thomas, a former Lord Justice of Appeal in the Court of Appeal and a very

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distinguished and experienced High Court judge. He is obliged to keep under review the exercise and performance of powers and duties relating to the acquisition of communications data under Chapter II of Part I of the 2000 Act.

The commissioner must report to the Prime Minister if, at any time, it appears to him that there has been a contravention of the provisions of the Act relating to the acquisition of communications data. His annual report to Parliament on the interception of communications includes details of all errors that are made. It will be for the commissioner to determine how he should fulfil his obligations in respect of the acquisition of communications data—this has not arisen because we have not yet managed to put this part into force, which we are seeking to do by way of this order. It will be for him to determine how this is reported to Parliament and to consider whether, and the extent to which, he should notify individuals affected by any inappropriate or deliberate misuse of the provisions for access to communications data.

In answer to the question raised a little earlier by the noble Baroness, Lady Blatch, concerning access to communications data, it will be for the commissioner to decide the extent to which he thinks it right and appropriate to notify individuals affected by any inappropriate or deliberate misuse of the provisions for access. If so notified, those individuals will be in a position to act.

11.45 a.m.

Lord Phillips of Sudbury: My Lords, I am very reluctant to interrupt the noble and learned Lord, but it may be helpful to the House if I were to question the advice the Attorney-General has just given. So far as I am aware, there is no right under Chapter II of Part I of the Act vis-a-vis communications data for the Interception of Communications Commissioner to inform a citizen whose information has been purloined of that fact. I make the point now because it may be possible for advice to be given to the noble and learned Lord by his officials. However, it is an important issue.


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