Lord Naseby had the second oral question in the House of Lords this afternoon. His question was:
“To ask Her Majesty’s Government how they ensure that requests arising from the Regulation of Investigatory Powers Act 2000 are proportionate.”
Helpfully he had already told us on ePolitix.com what he was getting at. The trouble was that he was blurring the issues and muddling a whole number of topics. The Regulation of Investigatory Powers Act – for the first time in many areas – placed a regulatory framework around all of the surveillance and investigatory techniques that can be used by the different public bodies, provided an external scrutiny process on how public bodies used the techniques and a means of pursuing complaints.
The answer from Admiral Lord Alan West and the ensuing exchanges (including my own modest intervention) is below:
“The Parliamentary Under-Secretary of State, Home Office (Lord West of Spithead): My Lords, the Regulation of Investigatory Powers Act 2000 provides a number of safeguards. Proportionality is explained in statutory guidance in the form of codes of practice and is subject to inspection by independent commissioners whose annual reports to the Prime Minister are laid before Parliament. In addition, anyone who believes that they have been subject to any unlawful action under RIPA may complain to the Investigatory Powers Tribunal.
Lord Naseby: My Lords, how can more than 500,000 such requests be proportionate? One of them was the keeping of petrol without a licence. Secondly, is it really proportionate for the Government to announce on 9 November that the provisions are to be extended to every single e-mail, telephone call, text or website posting? If the threat is so great to require that, surely it should be done only with legal sanction and not just by some council official, senior policeman or senior government manager?
Lord West of Spithead: My Lords, there are a number of issues there that need to be unpacked. It is important to note that RIPA is not anti-terrorist legislation: it regulates covert techniques. Before the 2000 Act, none of these things was regulated at all and no check was kept on how local councils might have carried out intrusive investigations that now, post RIPA, they are not allowed to do at all. To be absolutely clear, the Government accept that minor offences such as dog fouling or littering were never intended to be subject to these techniques, and RIPA was not what put them in place. That is using powers incorrectly and that is why we have now had a long period of consultation through the summer looking at these issues and will come out with a number of proposals in January that I hope will make this even clearer than it is at the moment.
Baroness Hamwee: My Lords, does the Minister agree that some of the local issues for which RIPA has been used, such as rogue traders selling knives to children, are serious matters and that it is right that local authorities should use the powers available to crack down on them? Does he also agree that what is really important is that the orders are made at a sufficiently senior level; that there is a framework within which the powers are used; and that they are used accountably and transparently?
Lord West of Spithead: My Lords, the noble Baroness is absolutely right. Following our consultation we will certainly raise the level of authorisation. We will also make sure that elected councillors are involved, so that they are privy and party to all of this. We will put this in statutory instruments in January.
Baroness Neville-Jones: My Lords, can the Minister be specific on this point: following the consultation that the Government are conducting, will local authorities still be able to use covert investigation techniques?
Lord West of Spithead: My Lords, yes, they will be able to use them, as they have always been able to use them. There are restrictions because of RIPA. Before the Act local authorities were not so restricted. For example, in communications data, because of RIPA, they are not allowed to use traffic data because that is the most intrusive. They are not allowed to use intrusive surveillance. However, there are a number of powers that they have always been able to use, and they use them. Some of these are rather important.
I have many examples but a good one is that of North Yorkshire council’s trading standards people. They prosecuted three roofers who had ripped off 11 elderly victims, two of whom had lost their entire life’s savings. It was quite appropriate that there should have been some form of covert investigation of that. It came out with a very good result. Those people ended up in prison, one of them for six years, one for five and one for three. It is appropriate that that should be done. Equally, it is totally inappropriate that a council should use this for matters that are not proportionate. That is what the consultation has come out with and that is what we are now trying to make even more certain. It would be wrong to use these powers over matters such as dog fouling, littering and so on. It is not proportionate.
Lord Harris of Haringey: My Lords, given that there was no oversight of the use of investigatory powers by local government until RIPA in 2000 and that there is now a complaints system and scrutiny of what happens, is it not the case that it is this Government who have protected citizens from improper intrusion by local authorities into their lives and are now increasing the level of protection by the new regulations which are being consulted on?
Lord West of Spithead: My Lords, my noble friend is absolutely right. I have to admit that I had not realised that, until 2000, none of these things was regulated at all. It is very interesting that the Chief Surveillance Commissioner said in his report for 2008–09:
“I am satisfied in general that the use made”—
“is proper and of a good standard. This applies to all types of public authority. Error is usually due”—
and this is talking about the minor things—
“to inexperience resulting from lack of use. The lack of use is because most public authorities use the power as the last resort. This is what the law requires”.
Baroness Manningham-Buller: Would the Minister mind correcting the point that there was no authorisation for these methods before RIPA? There was not for local authorities but, of course, the Interception of Communications Act 1985 and the Intelligence Services Act 1994 authorised the most intrusive methods. Secondly, would the Minister agree that the way to approach this sensitive and difficult issue is to regard the powers authorised by RIPA as a hierarchy; that the most intrusive powers should be used only in the most serious cases, when all other approaches to investigation have failed; and that the least intrusive should also be used infrequently and with great care and caution? There should be a hierarchy of both authorisation and intrusion.
Lord West of Spithead: My Lords, the noble Baroness touches on two points. The first is to do with interception. Interception was different and that is why I did not specifically mention communications data. Interception was covered by a specific Act before 2000. Of course, that is still not allowed to be used by local authorities. It is restricted to a small number of law enforcement and intelligence agencies. It is right that none of these powers should be used unless it is used proportionately. What they need to take into account is the severity of the offence and how useful these powers will be to the investigation. I gave a good example of where I thought it was proportionate to use them. However, we must not get this out of context. For example, the number of requests to use communications data of the type that local councils can use—they cannot use all of them—was only 0.3 per cent of all the demands for communications data. The bulk of them came from the intelligence agencies and the police. That is the way it should be, but that does not mean we should not do even better. That is why we have had the consultation and will bring in statutory instruments in January next year.”