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The noble Lord said: My Lords, it is my intention to address both the orders which relate to the regulation of investigatory powers. The second order is the Regulation of Investigatory Powers (Designation of Public Authorities for the Purposes of Intrusive Surveillance) Order. The two draft orders before us today are made under the Regulation of Investigatory Powers Act 2000. I shall deal with each instrument in turn.
The BBC order is made under Section 47(1) of the Regulation of Investigatory Powers Act--RIPA--and 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. This order provides an express legal basis for this activity, which is not one of the kinds of surveillance currently regulated by Part II of the Act. We signalled our intention to bring forward this order when this House considered the RIP Bill last year. Let me say a little more about that.
Your Lordships may recall that last summer we discussed the issue of surveillance for TV licence detection purposes undertaken on behalf of the BBC. The RIP Bill was amended in Committee specifically to exclude such activity from the definitions of intrusive and directed surveillance in Part II since it was considered that that particular surveillance activity did not properly fit under either definition. The resulting provision is to be found in Section 26(6) of RIPA.
But in deciding to exclude the specific activity of surveillance for TV licence detection purposes from the definitions of intrusive and directed surveillance, my noble friend Lord Bach said in Committee on 28 June, that,
The BBC's view, which the Government share, is that if TV 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)--that is to say, for example, for the prevention of crime--since licence evasion constitutes a criminal offence. However, Article 8(2) of the ECHR also requires an activity to be "in accordance with law"; that is, having an express legal basis. This order provides that basis.
The order will modify Part II of RIPA so as to provide for authorisations to be granted, only in relation to the detection of television receivers, by persons holding certain senior positions within the BBC's licence fee unit. They must be satisfied that an authorisation is necessary for preventing or detecting certain offences under Section 1 or 1A of the Wireless Telegraphy Act; for example, having a TV 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 proposed surveillance must also be proportionate to what is sought to be achieved by carrying it out. I should stress that we are talking here about surveillance carried out from outside a premises. And authorisations will be time limited: an authorisation can last for a maximum of eight weeks.
Responsibility for overseeing surveillance in relation to licence detection on behalf of the BBC falls to the Chief Surveillance Commissioner by virtue of Section 62(1)(a) of RIPA. And the Act provides for a right of redress for the individual. An individual can complain about this activity to the Investigatory Powers Tribunal by virtue of Section 65(5)(d) of the Act.
I now turn to the second draft order before your Lordships today, made under Section 41(3) and (4) of RIPA, and which designates the Home Office as a public authority which may make an application to carry out intrusive surveillance under the Act.
Perhaps I may explain our reasons for bringing forward this order. The Prison Service has come to the view that it requires statutory cover under RIPA for intrusive surveillance operations. Your Lordships will recall that under Part II of the Act intrusive surveillance is covert surveillance carried out in relation to residential premises or private vehicles. The definition of "residential premises" in Section 48(1) of the Act includes prison cells. There may be occasions when such surveillance by the Prison Service is considered necessary. We are thinking here of cases
The order before your Lordships will enable the Prison Service in England and Wales to apply for authorisations under RIPA to conduct intrusive surveillance operations. Your Lordships will note that the order designates the Home Office as a public authority whose activities may require the use of intrusive surveillance. It then specifies that within the Home Office it is only Prison Service staff that may make an application to use that power. The order is constructed in this way since the Prison Service does not have a separate legal status.
I shall explain briefly how the authorisation process will operate. The way that Part II of RIPA works means that authorisations permitting the Prison Service to conduct intrusive surveillance are to be given personally by the Secretary of State. The Secretary of State must be satisfied that such action is, first, necessary on one of the grounds listed in Section 32(3) of the Act; and, secondly, that it is proportionate to what is sought to be achieved by carrying out the surveillance.
In considering the circumstances of the individual case, the Secretary of State must consider whether the information which it is thought necessary to be obtained could reasonably be obtained by any other, less intrusive, means. Those are important tests. We believe that the intrusive surveillance power in Part II of RIPA is, rightly, narrowly drawn.
Authorisations granted by the Secretary of State to the Prison Service for intrusive surveillance 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.
As with the BBC's licence detection activities, responsibility for overseeing the use of intrusive surveillance by the Prison Service falls to the Chief Surveillance Commissioner by virtue of Section 62(1)(a) of RIPA; and the Investigatory Powers Tribunal is the appropriate forum to address complaints about this activity by virtue of Section 65(5)(d) of the Act.
Viscount Astor: My Lords, we welcome these two orders. With regard to the first order, relating to the BBC, I was going to ask whether anyone who felt that he had been unfairly intercepted could go to the tribunal, but the Minister has answered that he can.
With regard to the second order, I have some questions as I am unclear about it. The Minister says that it covers surveillance, which is a rather broad term. Does that cover, for example, the tapping of
Can the Minister give the House an assurance that surveillance will not be used to cover either meetings or discussions of people in prison when they are with their legal advisers? That is an important issue. Under the second order, is there an appeals system to the tribunal? I believe the Minister said that there was, but perhaps he could confirm that. Perhaps he could also confirm that this order is, in his view, consistent with the Data Protection Act.
Lord Goodhart: My Lords, like the noble Viscount, Lord Astor, we are entirely happy with the order relating to the BBC. That kind of surveillance has been going on for many years. It has been accepted as a reasonable way of finding out who is not paying a licence fee that they should be paying and it is accepted as not being unduly intrusive. I believe it is fair to say that we welcome the fact that this is being brought under a modified version of Part II of the Act rather than being left outside that part. We have no problems in relation to that.
However, we find some problem with the order relating to intrusive surveillance by the Prison Service. I have no problem in seeing why the order is needed; there are situations--the taking of hostages is not the only one--where the bugging of a prison cell may be necessary in order to prevent crime or to assist in the clearing up of crime. Indeed, one could say that it is such an obvious point that it is surprising that it was not dealt with when the Bill was before your Lordships' House and it was subsequently left to be dealt with by an order.
I am struck by the enormous difference between the control over applications for intrusive surveillance authorisation by the police and by the Prison Service. So far as the police are concerned, they are subject to detailed rules under Sections 32 to 40 of the Act as to how authorisation is given. One starts with the grant of authority by the authorising officer--there is a list of who they are--and that is followed by approval by the surveillance commissioner.
However, there is nothing of that kind in the case of the Prison Service. All ranks--that is anybody in the Prison Service--can apply for authorisation. No such authorising officer is interposed between the person making the application and the Home Secretary. Apart from anything else, the Minister said that the Home Secretary will have to approve such orders personally, which may be perfectly correct, but it does not necessarily appear to be an appropriate use of the time of the Home Secretary. I find it unsatisfactory that there is no intermediate provision for authorisation, with all the safeguards that would be covered by such a procedure in the case of applications from the Prison Service. What sort of investigation will the Secretary of State be able to carry out?
I believe it is unsatisfactory that the provisions for the applications by the Prison Service are so extraordinarily open-ended as compared with those for the police. There is, for example, no attempt to limit the number of officers who can apply. One would have thought that if an application goes direct to the Secretary of State it should come from someone at governor or deputy governor level. Again, there is no attempt to use the power to impose restrictions that the Home Office could have used under Section 41(5), which could have been incorporated into the order. While we do not oppose the order, we believe that its form is pretty unsatisfactory.
My final question is: what is the position of employees of private organisations that run prisons under contracts? Are they, or are they not, holders of office, rank and position in Her Majesty's Prison Service? If they are not, clearly there is a major lacuna in the order.
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