Third Standing Committee
on Delegated Legislation
Tuesday 21 May 2002
[Mrs. Irene Adams in the Chair]
Draft Regulation of Investigatory Powers
(Interception of Communications: Code of
Practice) Order 2002
The Parliamentary Under-Secretary of State for the Home Department (Mr. Bob Ainsworth): I beg to move,
That the Committee has considered the draft Regulation of Investigatory Powers (Interception of Communications: Code of Practice) Order 2002.
The order was laid before Parliament on 8 May 2002 and was made under the powers conferred on the Secretary of State by section 71 of the Regulation of Investigatory Powers Act 2000. Section 71(1) requires the Home Secretary to issue codes of practice relating to the exercise and performance of powers and duties under RIPA.
The interception of communications code of practice relates to the exercise and performance of the powers and duties set out in chapter I of part I of RIPA in respect of the interception of communications. The code supports the Act by providing, we hope, clear and unambiguous guidance on the lawful interception of communications in the UK. Section 72 of RIPA provides that any person exercising such powers or duties shall have regard to the provisions in such a code of practice and that such a code is admissible as evidence in criminal or civil proceedings. However, a person's failure to comply with a code of practice issued under section 71 shall not in itself render them liable to criminal or civil proceedings.
Section 71(3) requires all draft codes of practice issued under RIPA to be published and the Secretary of State to consider any representations made to him about the draft. Public consultation in respect of the interception of communications code of practice has been conducted, and it lasted from 25 September to 17 November 2000. The results have been made available on the Home Office website.
The provisions in RIPA relating to the interception of communications replace those in the Interception of Communications Act 1985 to take account of new technologies and human rights obligations. They also provide, for the first time, for a statutory code of practice to be approved by Parliament.
The interception code of practice sets out how the provisions in chapter I of part I of RIPA regulate the interception of communications. The Secretary of State is still required to issue a warrant authorising interception only for the purposes set out in the Act. Warrants may be applied for only by the security and intelligence services, the police, Customs and Excise
Column Number: 4
and the Chief of Defence Intelligence, or in response to a request from a member state of the European Union for mutual legal assistance.
The code sets out the procedures to be followed by agencies when applying for an interception warrant from the Secretary of State, as well as offering guidance to agencies and others on giving effect to warrants and the disclosure, copying and retention of material obtained through warranted interception.
The code also sets out how interception can lawfully take place without a warrant in specific circumstancesfor example, where there are reasonable grounds to believe that all parties have consented to an interception. Importantly, it provides guidance on the necessity and proportionality considerations that must be taken into account to ensure consistency with the European convention on human rights and obligations under the Human Rights Act 1998.
The code has the support of the law enforcement and intelligence and security services, and the Interception of Communications Commissioner, who provides an independent oversight of the process.
Mr. Dominic Grieve (Beaconsfield): First, on behalf of the Opposition, I broadly welcome the code of practice. It seems to provide helpful guidelines, setting out clearly what in the past was likely to have been more opaque or to have been ascertained only by considerable research or through questions to Ministers.
I hope that the Minister will forgive me if I pick up a number of brief points that seem to arise when one reads the code and on which clarification would be helpful, if only for the record. They might be matters on which the Government have previously explained themselves, but it is worth examining them.
Let us consider the duration of the interception warrant, at paragraph 2.11 of the code of practice. The regime specified for interception warrants issued on serious crime groundsthree months on renewalis different from that for national security, which involves a further six months. Will the Minister clarify why two different regimes are required?
One might engage in a little guesswork, but it could be argued that many criminal investigations are likely to last longer than three months, especially when one is dealing with serious crime. Equally, if a case involves national security, wherein lies the problem in making a further application for renewal after three months rather than having a warrant for six? What is the rationale behind that distinction? Will the Minister help to clarify it?
Paragraph 2.15 says:
''Stored communications may also be accessed by means other than a warrant''.
I can follow that. It continues:
''If a communication has been stored on a communication system it may be obtained with lawful authority by means of an existing statutory power, such as a production order (under the Police and Criminal Evidence Act 1984) or a search warrant.''
Column Number: 5
If a telephone conversation is recorded on tapewhich it can be, on an answerphone, for examplesomebody who has a search warrant and gets hold of the tape will have no difficulty in accessing it. However, if material has been processed and recorded into a computer system, and I simply hazard that, what is the status of the situation under the Data Protection Act 1998? Will the Minister clarify the point? I shall be grateful if he explains where, if at all, the protections of that Act might relate to those provisions. If he cannot do so this afternoon, I dare say that he will write to me.
Paragraph 4.3 is, perhaps, more important. The issue, which features elsewhere, raises an interesting point on which I shall be grateful for the Minister's clarification. We are told, helpfully, that there are three categories of circumstance in which the Secretary of State may believe that a warrant is necessary. The first is
''in the interests of national security''.
I do not suppose that anybody has much doubt about that. It deals with issues such as terrorism and espionage. The second is
''for the purpose of preventing or detecting serious crime''
and the thirdthe phrase has been around for some timeis
''for the purpose of safeguarding the economic well-being of the United Kingdom''.
In paragraph 4.4, we are told that national security and state security are one and the same. I have no difficulty with that; it is simply the way in which it is expressed in an EC directive. However, we are also told that in safeguarding economic well-being there must be a link to state security. Now that the linkage is expressly spelt out, why is there a separate category for economic well-being at all, if safeguarding the economic well-being of the United Kingdom is a legitimate ground for interception only if it impinges on national security? I should have thought that if one removed that category entirely, it would still be possible to carry out the interception in the interests of national security. Why is it necessary to categorise and to retain the economic well-being test separately in view of the fact that paragraph 4.4 makes it clear that that is subsumed in the national security category?
On paragraph 4.6, I hope that the Minister forgives me if I seem naive as to officials' ability to communicate with a Secretary of State. Express provision is made for circumstances in which the Secretary of State does not carry out the authorisation by signing the document himself, and the signing is done by one of his officials because, effectively, the Secretary of State is not present. The paragraph makes it clear that, if that happens, it will be done only
''following discussion of the case between officials and the Secretary of State.''
I worry a little about this one. If the Secretary of State is attending an international crime conference in Buenos Aires, for example, during the process of granting authorisation following discussion, is it likely that he will be able to apply his mind to the grounds on which the application is sought rather than simply give it a verbal rubber stamp?
Column Number: 6
I ask that because it is important that rules reflect what happens in practice. The Minister may be able to reassure me, but I am bound to say that if the Secretary of State were out of the country for some reason and an emergency application arrived, I would almost prefer the decision to be taken by an official and reviewed by the Secretary of State on his return. That might be preferable to what couldI emphasise ''could''be a fudge if authorisation supposedly follows discussion of the case between officials and the Secretary of State.
There are clearly ways to engage in secure communication, even between Buenos Aires and the United Kingdom, but I question whether the Secretary of State would really apply his mind to all the detailed criteria of an ultra-secret application describing the circumstances in which interception was sought. Would it not be better to acknowledge that the Secretary of State may not be able to apply his mind and to allow an official to stand in for him, after which the Secretary of State could review the decision in the five days provided?
Subject to the Minister's answer on that point, I repeat that we welcome the code of practice, which is a step forward in terms of regulations and ensuring that individual liberties are not infringed for no good reason. He will be reassured, if not overwhelmed, by the information that we shall not divide the Committee.