§ 1.39 p.m.
§ The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton)
rose to move, That the order laid before the House on 22nd September be approved [28th Report from the Joint Committee].
The noble Lord said: My Lords, the order and the rules before the House today are made under the Regulation of Investigatory Powers Act 2000. The order specifies the matters which must be notified to an ordinary surveillance commissioner when a person grants, renews or cancels a police or customs authorisation for the carrying out of intrusive surveillance under Part II of the Regulation of Investigatory Powers Act 2000. They are built on the existing requirements under the Police Act 1997, a directly analogous procedure. I commend the order to the House, and I beg to move.
Moved, That the order laid before the House on 22nd September be approved [28th Report from the Joint Committee].—(Lord Bassam of Brighton.)
§ The Earl of Northesk
My Lords, I thank the Minister for his explanation of the two statutory instruments. First, I should like to express my admiration for the noble Lord's wishful thinking. He will recall his comment of two days ago that:I think the relevant Bill might have been the 'rest in peace' Bill".—[Official Report, 25/10/00; col. 450.]646 Can we deduce that the noble Lord was pleased to have seen the back of it? Indeed, would it stretch credibility to suppose that the noble Lord was hinting that the Government might have preferred that RIP had never seen the light of day? Come what may, its ghost is still haunting us.
Indeed, I noted the references to RIP in the debate we have just had on e-commerce. I was particularly struck by the comments of my noble friend Lord Geddes. It may be the bailiwick of the DTI and it may be a little bit removed from the subject matter of this business, but the Telecommunications (Lawful Business Practice) Regulations are important. I merely observe here that it is extraordinary that a negative instrument is being used to recast an Act passed so recently. The House may wish to return to this matter in its own right in the future but for the moment I would welcome any light the Minister can shed on it.
As to the two instruments before us, there are a few issues that I wish to explore. First, my reading of Section 6 of the Investigatory Powers Tribunal Rules is that, unless guilty parties consent, a tribunal will not be able to disclose a whole host of matters relating to the case even if it finds in favour of the claimant. Will that not act as a constraint on proper accountability in that guilty parties will be assured that their misconduct can be hushed up, effectively on their say-so. It strikes me too that the provision sits somewhat awkwardly with the Government's commitment to openness and transparency via the expedient of the Freedom of Information Bill.
A more general point is that, as I read the rules, if a claimant is excluded from proceedings, it is at the discretion of the tribunal as to whether a special advocate should be appointed to represent his interests, challenge evidence and so on. Is there not a valid argument that the tribunal should be required to appoint a special advocate in such cases?
I turn to the notification of authorisations order. I note that paragraph 3(c) deals with the issue of whether the privacy of third parties will be compromised in the event that application for an intrusive surveillance notice is made. I have no difficulty with that. It is right that the procedure for such notices should be designed so as not to offend the terms of the Human Rights Act. But it begs the question as to whether the rights of the subject of an intrusive surveillance notice would also be compromised. For example, if an individual is suspected of some criminal act and as a result is subjected to intrusive surveillance, would not his right to privacy have been infringed if such investigations resulted in proving his innocence of any wrong doing? I look forward to the noble Lord's replies on those points.
§ Lord Bassam of Brighton
My Lords, the noble Earl spoke to both the instruments. I was going on to speak to the second instrument, but I shall do that now as it picks up some of the noble Earl's points.
647 I ask the House to approve the Investigatory Powers Tribunal Rules, as set out in Statutory Instrument 2665 of 2000. The rules establish the procedure by which the Investigatory Powers Tribunal shall consider some of the matters brought before it under the Regulation of Investigatory Powers Act. It is important to note that these rules will apply only to the two jurisdictions identified in Section 65(2)(a) and (b) of the Regulation of Investigatory Powers Act. The jurisdiction in Section 65(2)(c) will be brought into force at a later date and will require separate rules.
I should explain briefly what the two jurisdictions in question relate to. First, under Section 65(2)(a), the rules provide for the procedures to be used at the tribunal when considering proceedings brought under Section 7 of the Human Rights Act 1998 against the intelligence agencies and in respect of the use of investigatory powers covered by the Regulation of Investigatory Powers Act by other public authorities named in Section 65(6). Secondly, the rules will cover the procedure for the jurisdiction under Section 65(2)(b). That covers all complaints against the intelligence agencies and all complaints against public authorities in respect of the use of the powers of the Act.
The jurisdiction and procedures for the new tribunal are an important element of the protections offered by the Regulation of Investigatory Powers Act. The fundamental point is the need to provide a credible and accessible means of redress in respect of the use of these investigatory powers. Parts I, II and III of the Act, which noble Lords may recall discussing some months ago, set out in some detail how the use of each of the powers is available only in specific circumstances and even then only when specifically authorised. Yet the protections are not enough. We have also provided for commissioners to audit the use of the powers and, crucially, we have established a new tribunal to which citizens may go to seek redress in the relevant circumstances. The rules are a vital element of the regime we have established. For that reason, I commend them to the House.
The noble Earl tempted me to pass comment on the legislation. I think that it is good legislation. I believe that it has sufficient checks and balances built into it. The noble Earl referred specifically to special advocates and asked why they should not be used in these circumstances. There are very special circumstances surrounding the Investigatory Powers Tribunal. It relates to extremely sensitive matters which go to the heart of our most secret law enforcement agencies. For those important reasons, reasons which I am sure noble Lords opposite have always traditionally supported, I believe that the procedures we have adopted are entirely right and appropriate. We believe that they are proportionate and that, under the circumstances in which they operate, they strike exactly the right balance. Looking at the history of previous and similar tribunal structures, I have to say that my knowledge of the way 648 in which they have worked in the past suggests to me that they have struck the right balance. I commend the order to the House.
§ On Question, Motion agreed to.