Protection of Freedoms Bill

Lord Phillips of Sudbury Excerpts

Tuesday 13th December 2011 Grand Committee

[Lord Phillips of Sudbury]

My Lords, I support this group of amendments, but with a degree of confusion as to just what the Bill provides. If one looks at Clause 29, which introduces the code of practice, there is no reference there at all to relevant authority. There are two references in subsections (3)(f) and (3)(g) simply to “persons” operating a CCTV system. The more my noble friend introduced the group of amendments, the more I wondered why on earth this code is not applicable to all users of CCTV systems, be they public, private or whatever. Why, for example, in a shopping mall with endless numbers of CCTV cameras should they not be subject to the code requirements, just as any of the relevant authorities as defined in Clause 33 are? My noble friend the Minister might like to ask her officials whether Clause 29 was indeed drafted to apply to all those operating CCTV systems, and why Clause 33 itself refers twice to relevant authorities but in subsection (2) simply refers to a

“failure on the part of any person to act in accordance with any provision”,

of the code.

[Lord Tunnicliffe]

My Lords, the dilemma in front of us is basically to do with the application of CCTV, its value and the safeguards related to its value. I have peculiar experience of this, having headed up an organisation which had probably one of the largest CCTV installations in the UK. I have to say it was introduced before anybody thought about any sort of code, and we built up practice. Our experience was that the benefits massively outweighed the disadvantages. Our other experience was that acceptance by the general public simply grew with time. In London, people are used to CCTV on transport systems, in public spaces and so on. We think that the benefits are enormous.

We are not against the general concept of introducing a code, but we have all made it clear that we think the way this code is being introduced is wrong. The right thing to do is to have an inquiry to understand the extent of the problem, to start working up criteria and so on. However, if the Government insist on introducing this code more rapidly than that, we would be against its extension to all publicly funded areas and to schools and colleges. This is not because we are against extension of the code—as has been rightly pointed out, there are many privately owned CCTV cameras that could sensibly fall within a comprehensive code. What we are against is the extension of that code until the right amount of experience has been gained and investigation has taken place. Otherwise, these crucial areas, particularly schools and colleges, where CCTV is so valuable, will be burdened with a bureaucratic nightmare until we achieve a code that gets the right balance of being bureaucratically light while achieving the effective objectives of public engagement and acceptance. Therefore, in this Bill at this time we do not support these amendments.

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[Baroness Hamwee]

My Lords, this amendment proposes that the commissioner should, within three years, prepare a report about the extension of the code to other operators. We have already touched on this in referring to Clause 33. My noble friend Lord Phillips, who has been taxing me with notes asking me to justify the drafting of this section, which is not my responsibility, asked under a previous amendment not about the extension of the code but about which operators were subject to it. He was asking why this chapter starts by appearing to be quite general and then becomes more restrictive once we get into the detail of Clause 33. He is nodding; I hope that I am interpreting him correctly.

My understanding of this is that because, under Clause 33(5)(k), more persons can be added to those who come within the definition “relevant authority”, Clause 29 and the succeeding clauses are drafted in that slightly wider way. I share my noble friend’s concern that “relevant authorities” should extend to a wider group of operators than are listed in Clause 33(5)(a) to (j).

A similar question was asked during the Committee stage in the Commons, and the Minister, James Brokenshire, said:

“The report—

this is the regular report to the commissioner—

“will be an instructive and formal means for the commissioner to telegraph clear recommendations about the code, its application and whether it is achieving its intended objectives”.—[Official Report, Commons, Protection of Freedoms Bill Committee, 26/4/11; col. 364.]

My amendment takes the matter wider to those who operate the code.

It occurred to me only during this debate that it will be helpful to have—and I am sorry to be technical, but the noble Lord, Lord Faulks, will probably tell me that I am not accurate in this question—reassurance that the sui generis rule does not apply and that by having a list that is very specific we are not stuck to those organisations and persons who are similar to those listed in paragraphs (a) to (j) of Clause 33(5). Clearly there is concern that a much wider group of persons—private companies do not quite come within this—and all operators of CCTV, those who run shopping malls, for instance, should not be brought within the scope of the code. We know how the concerns have started, but the more we talk about it, some of us feel that there should be a code that is observed by all operators. While I understand that getting experience of the use of the code under one’s belt might be a good thing, I think that we would like to know that the position will be reviewed in fairly short order. I beg to move.

[Lord Phillips of Sudbury]

My Lords, I would just like to add a few points to those made very effectively by my noble friend Lady Hamwee. I regret to ask the Minister some questions, because it always seems churlish to spring technical questions upon a well meaning Minister, but I hope he gets advice from his rear quickly.

First, Clause 34 “Commissioner in relation to code” states that in Clause 34(2)(b) that the commissioner has the function of,

“reviewing the operation of the code”.

I agree with my noble friend Lady Hamwee that that does not, on the normal reading of those words, extend to consideration of the exercise of power to specify new bodies to be caught by the code under Clause 33(5)(k).

Secondly, will the Minister confirm that there is nothing in Clause 35 “Reports by Commissioner” that appears to authorise the commissioner in making reports to consider the point of extension of the code, which I would have thought justifies Amendment 113?

Finally, all those arguments would count for nought if in Clause 33(5)(k) the proper construction of “any person” is to confine “any person” to bodies comparable to “relevant authorities”. My own view is that it does not. In view of the opaqueness of the drafting of this part of the Bill and, as I said earlier, the fact that Clause 29 refers twice to “persons” but not at all to relevant authorities, I feel we need to be very clear of our ground here. In my humble view, there is a lot more concern about the operation of CCTV cameras by private interests than by public ones. I cannot think, for example, that the Sub-Treasurer of the Inner Temple is likely to abuse the CCTV cameras within his or her purview, but I am afraid I can foresee that some private operators might get up to things that are extremely undesirable.

The end of all that is whether the Minister can say to us now that he will take this away, look at it and if necessary bring forward his own amendment at the next stage of the Bill. I hope he might do that. I apologise again for springing this rather nasty group of questions upon him, but I was unprepared for the debate as it has evolved.

[Lord Henley]

The noble Lord, Lord Phillips, mentions the Sub-Treasurer of the Inner Temple and assures the Committee that he does not think that he would act improperly in any way. I hope he would extend that to the Under Treasurer of the Middle Temple, my own Inn, because I am sure she would act in an equally proper manner. I see my noble friend Lord Faulks, who I think is a bencher of the Middle Temple, nodding in agreement on that matter.

[Lord Phillips of Sudbury]

I give him that assurance from my heart.

[Lord Henley]

I thank the noble Lord for that. I hope I can deal with some of his queries, and I hope I can assure him that I do not believe that the drafting here is opaque in any way whatever.

When we look at Clause 33(5), it is pretty clear that we have all the classes listed in paragraphs (a) to (j), including the Council of the Isles of Scilly, the Common Council of the City of London and, in effect, all local authorities. Then we have paragraph (k), which states,

“any person specified or described by the Secretary of State in an order made by statutory instrument”.

That is as clear as clear could be that it can be extended by the Secretary of State after consultation with the appropriate people who might be affected. Those people could be public, they could be private, or whatever.

[Lord Phillips of Sudbury]

The Minister will have observed that Clause 33(2) states:

“A failure on the part of any person to act in accordance”,

with the code. That does not seem to sit comfortably with the much wider interpretation in the same clause of the same phrase.

[Lord Henley]

No, my Lords, it is very clear. In Clause 1, we are talking about any “relevant authority” and relevant authorities are listed in subsection (5). That could be extended. If it was extended, to use “relevant authority” in subsection (2) would not include paragraph (k) of subsection (5). The noble Lord is making a mountain out of a molehill. As I understand it, it is quite clear. Should it be extended, it would then be:

“A failure on the part of any person to act in accordance with the provision”;

“person” in its legal sense would include paragraphs (a) to (j), but would also include paragraph (k) if my right honourable friend had extended those who are covered by it by using subsection 5(k) so to do.

[Lord Phillips of Sudbury]

I promise that this will be my last intervention, but it is important to get this as right as we can. I am afraid the Minister’s argument does not hold because Clause 33(5) starts by saying:

“In this section ‘relevant authority’ means”,

and that includes any extension under paragraph (k). I put that to him, and I would be grateful if he would review this later.

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[Lord Phillips of Sudbury]

My Lords, I support my noble friend on this group of amendments. I was the unfortunate person who was the main spokesman for these Benches on the original Regulation of Investigatory Powers Bill, and what a nightmare it was. Indeed, what a nightmare RIPA 2000 still is. It is one of the paradoxes of human rights law these days that it is for every man and every woman but the way in which it is framed—and, to some extent, I suppose, has to be framed—means that it is almost inaccessible except to a handful of specialist lawyers. This Bill is an exemplification of that on stilts.

A few moments ago, the noble Lord, Lord Tunnicliffe, moved Amendment 114, calling for an independent inquiry into the use of investigative powers, which has some commonality with Amendment 128. Despite what the Minister said, I believe that RIPA is important, and getting more important given the advances in technology in so complex and fast-moving a world. We have the Leveson inquiry at the moment looking into breaches in one corner of this surveillance market. I believe that despite the expense—and it is fair never to ignore the expense and time involved in these investigations, inquiries and reviews—this is a warranted proposal.

The existing RIPA is internally inconsistent. Its implementation is certainly widely inconsistent. I believe that we need to be highly sensitive to the issue of civic trust because in the surveillance society there is a culture that is extremely unhealthy to democracy and in which citizens feel that their lives are not their own. If one wanted one most vivid example of the state of affairs that I am trying to describe, it is the reaction of the public to the Milly Dowler affair, which still reverberates. That was a fair reflection of the degree of sensitivity that exists in relation to intrusive surveillance and so on. Because of the points so well put by my noble friend Lady Miller, I think that despite the cost and the fact that the commissioners make annual reports, at this stage, more than 10 years after the passage of RIPA in 2000, the Government should think hard about standing back from this legislation and the amendments that will be introduced by this Bill and look at RIPA hard and long and carefully, and with wide public consultation that goes beyond the usual suspects and gets to the sort of people who were so frantic about some of the revelations that have been before us in the past year or so and are being rehashed in the Leveson inquiry.

For those reasons, I support this group of amendments and the increase in judicial oversight of the whole apparatus of intrusive, directed and covert surveillance that we have heard about today.

[Lord Selsdon]

My Lords, I shall speak to Amendment 126 and the other amendments. I support my noble friend Lady Miller. This subject is, unfortunately, one of my hobbies. I am totally opposed to people entering other people’s property without permission or court orders and I am totally opposed to this form of surveillance, even if it is called observation. I declare an interest as former secretary of the Parliamentary Space Committee; I am involved in space and privy to certain information about advanced technology that makes me even more nervous.

RIPA was a great idea when it started—like most things with initials that you cannot remember—but, even when it is amended, I will be concerned about public bodies and, in particular, covert activities. However, public bodies can get round the safeguards that are there by accepting evidence gathered by non-public bodies. That leads us to the fear that in these sorts of covert operations a public body, all in good faith, may find that it has an opportunity to obtain from a third party information that may be offered to it, not necessarily by a hacker but by some person who finds that he has something of value that could be sold. The amendment proposed is that one should not be able to use that information in prosecutions.

I will not go too far on this but we know that the listening devices that are around are extremely sophisticated and can be programmed from many miles away. Aerial surveillance is also possible from satellites in real time—not the Google thing of showing a picture of your house from above but information that can be picked up.

The purpose of Amendment 126 is to introduce a safety clause. I think that the Minister may be prepared to accept it. Once amended by the Protection of Freedoms Bill, public bodies will be able to get round the safeguards by accepting evidence gathered by non-public bodies using covert surveillance that could not have been authorised by the public body itself. This may mean that the public body, in good faith, is offered information or materials that could be helpful in pursuing its course by a private sector or non-public body. The question is therefore whether the public body has any responsibility for this and for the information provided. The suggestion here is that if freedoms are to be protected the loophole must be closed and it must not be acceptable for information to be gathered covertly without proper authorisation and used for prosecution. That means that the public body must take responsibility for any information that may be gathered and its name must be linked to it. Thus any information that is gathered that the public body has not itself authorised or been associated with should be excluded from any efforts of prosecution.

We know that many examples of this are being pushed around at present. The amendment is relatively simple; it says that anything that is done in the name of a public body, or is misused in the public body’s name, must be the responsibility of the public body, which should be responsible for making sure that everything is in order.