| Regulation of Investigatory Powers (Notification of Authorisations etc.) Order 2000
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Mr. Heald: Obviously, one of the things that we thought would happen when the Act was passed was that, if there was to be no cross-examination, and if it was to be possible to hold separate hearings at which the complainant was not present, there would at least be a power to enable the tribunal to give the complainant a summary of any evidence. That is included in section 69(4)(c) of the Act. Therefore, I would be interested to know whether the Minister is saying that the Government have decided not to do that—because such a power was supposed to be part of the Act—or is it that this is the first set of rules and that fuller rules will be issued? I accept that it may not be right to make that a requirement, but I would have thought that the tribunal should have such a power. Mr. Clarke: I think that I can satisfy the hon. Gentleman on that matter. It is not a requirement, but it is a matter for the tribunal. The tribunal is certainly entitled to summarise information if it so wishes because it has that power under the Act. The tribunal will make its decision according to the balance in the individual case. That decision to summarise is constrained by rule 6 on disclosure of information, which sets out various qualifications on the way in which the tribunal might publish a summary. I am certain, however, that the tribunal will offer summaries if it believes that the balance that I have described can be maintained. It is not a question of issuing new tribunal rules. The important qualification is that, as the Act is implemented, and as any legal judgments relating to the Act are made, the Government will look at the rules and the way in which the Act operates in the light of what has happened. We are not saying, ``Here is a staging point on the way to another set of rules that we will publish later,'' and that the matter has not been resolved. We are saying, quite explicitly, that the tribunal is not under an obligation to summarise. It has the right to summarise if it thinks it right to do so, but it is constrained by rule 6 on disclosure of information. Such matters are in the hands of a senior judge who is practised in making balanced judgments. He will be aware of this debate, the letter of the law and the rules set down. Therefore, I believe that the people who will carry out the provisions of this legislation will be able to make balanced judgments in the interests both of the individual and of the nation.
4.47 pmMr. Brian Cotter (Weston-super-Mare): I must apologise on behalf of my hon. Friends the Members for Taunton (Jackie Ballard) and for Torridge and West Devon (Mr. Burnett) who, because of the exigencies of the weather, could not get here today. Unlike my colleague behind me, the right hon. Member for Fylde (Mr. Jack), I am a genuine novice. I heard the Minister say that concern was expressed in the House on Friday about whether the tribunal would be able to allow a special advocate to represent those who are discussed. The Minister said that a legal person of great ability would follow this debate—I say this in all humility because I do not know much about the background and I did not serve on the relevant Committee—so, in view of the fact that concerns were expressed in the other House and by my colleague today, I hope that, as the legislation beds down, the legal person will monitor the situation to ensure that the powers and procedures are satisfactory.
4.49 pmMr. Andrew Tyrie (Chichester): I freely admit that I have not got my head around all this, but I want to present my lack of clarity in such a way as to enable the Minister to clear the mists for me. I am sure that he will be able to tell me how the Act and order will work. I shall begin by describing my problem. As I understand it, the Act sets up a tribunal to replace that established by the Interception of Communications Act 1985, and the order sets out aspects of the working and jurisdiction of the tribunal. We already have two other tribunals in related fields: the Security Service Tribunal, which was set up under the Security Service Act 1989 to deal with MI5; and the Intelligence Services Tribunal, which is covered by the Intelligence Services Act 1994 and deals with MI6 and GCHQ. Both those tribunals have commissioners to review, among other things, the authorisation of warrants for covert operations. How will those tribunals and their work be affected by the order and the Regulation of Investigatory Powers Act? Am I right in thinking that they will lose all responsibility for cases that concern human rights? I presume so, because section 65 makes it clear that the Act covers proceedings against any of the intelligence services or people acting on their behalf for actions incompatible with the European convention on human rights. However, I may have got that wrong. The two tribunals will also presumably lose any responsibility for what is described in the Act as interference with, or entry into, property and interference with wireless, telegraphy and the like. That being the case, what are those tribunals left with? They seem to have lost their two most important tasks. The answer seems to be that people can complain to them if they think that they are on a file, or if they think that they have been blacklisted for a job without their knowledge. The order and its parent Act would presumably not cover those cases. Have I got that right? If not, what is the division of responsibilities among the tribunals—of which there are now three—and between the two sets of commissioners? The Minister may not want to commit himself now, but it would be helpful if he would seriously consider publishing a matrix so that the wider public can understand the relationship between the various tribunals and committees and their tasks and responsibilities. I tried to draw one up this afternoon, but did not get far. Mr. Clarke: The effect of the Act and the rules is to abolish the two tribunals to which the hon. Gentleman refers, except for complaints made before 2 October. Before he goes too far down the path that he is on, he should appreciate that they are abolished by the legislation and that there is one new process. Mr. Tyrie: That is extremely helpful. I could not find that point clearly made anywhere in the material, and I think that even the Minister himself had to get a briefing from officials to find that important information. I do not mean that as any imputation on the Minister's considerable brain power. It is merely a reflection of the complexity of the matter. We still need a description of the relationship between each category of surveillance, and of who is responsible for giving the authorisation in each category. Is it the Home Secretary or someone designated by him? It varies from case to case. Are there cases in which other Ministers may give authorisation? Does the Foreign Secretary have any responsibility in this area any longer? Can we be confident that, in all cases, the tribunal will scrutinise and audit the authorisations? We want to be clear about to whom people should go if they consider that they are being investigated wrongly. The existing tribunals have heard hundreds of cases, but not one complaint has ever been upheld. Is that a reflection of the fact that such services have got it right or of the fact that the tribunals that are to be abolished have not so far been doing their job very well?
4.55 pmMr. Michael Jack (Fylde): It is a delight to serve in Committee under your chairmanship, Mr. Wells. I am interested to know how the measures will operate. The primary legislation relating to the Regulation of Investigatory Powers (Notification of Authorisations etc.) Order 2000 lists those people who can press the button on the process coming into being. In the real world, however, there would be a variety of experience on which to draw when operating such provisions. What steps will be taken to ensure that those who operate the procedures under the order are fully up to speed and have an equality of knowledge and understanding of the issues, so that there is uniformity in decision making? If I have understood the primary legislation correctly, authorisations are granted initially for 40 days. Article 4 of the order covers notice of renewal of authorisation, but it does not give guidance about when that notice of renewal process should begin. If such a process began on the 40th day, there could be a great rush. Given the amount of information requested under the article that is understandably presented to the authorising authority about why the surveillance should continue, the authority might in pursuance of exercising such powers require a little time to consider that information, so that it could respond to it properly with pertinent questions. Will the Minister clarify the mechanism for renewal? Unlike the road vehicle duty licence, where there is supposedly an unofficial period of grace when things roll on, the legislation may contain some detailed instructions saying that the process of renewal should not be left until the 40th day, but should be renewed before then. The order is unclear about such matters. Renewal is an important safeguard and, if the powers are to be continued, it is important that they are operated correctly. En passant, I should like the Minister to satisfy my curiosity about whether section 35(2)(c) of the Regulation of Investigatory Powers Act 2000, which is relevant to the order, contradicts section 35(6) of the Act. It seems that the Secretary of State might take certain action, only for such action to be contradicted by the primary legislation. I am sure that the order works perfectly well, however; I may have misunderstood its provisions. One matter that intrigued me about the Investigatory Powers Tribunal Rules 2000 concerns the steps that the person making a complaint must take to comply with the rules. Rule 8(2)(b) states that the complainant should
It states that the form
state the information to which I have just referred. A perfectly innocent person who had been mistakenly suspected—in whose case grounds might have existed for carrying out a surveillance exercise, if only to rule him out of having participated in some activity—might be suspicious and want to make a complaint, but, as such matters are dealt with in some secrecy, the relevant person or authority might not be advertised as is necessary to comply with that provision. People might want to make a complaint because they are suspicious and have a gut reaction—something that police officers often apply in the conduct of their duties in order to guide them in their investigations. If people are fuzzy or hazy about paragraph (2)(b), how will the mechanism operate, given that the rules state that
apparently contain a piece of information that, because of the security aspects to which the Minister referred, might be difficult to establish? Earlier under the rules, if I have understood them correctly, the tribunal is granted powers to hold separate oral hearings, in which the complainant would not be able to hear information confided. Rule 9(4) lists the people who can put their views to the tribunal. I am intrigued. I appreciate the critical balance to which the Minister referred between the need for security and the problems that the authorities have in dealing with the nastier parts of our society and the actions that must, as my time at the Home Office showed, be taken in pursuit of those objectives. I am sympathetic to that aspect. However, we are dealing with protecting individuals' rights, and people usually have a chance to hear and comment on evidence given. I am slightly worried, although there may be a good reason for the provision. Why can complainants not hear what is said in reply to their arguments? Good security reasons may be involved, but tribunals usually include a discussion about why something has happened. In this tribunal, there will be not a Chinese wall but a brick wall between the complainant and those responding in front of the adjudicating person or authority. Will the Minister clarify those points as we reach a conclusion?
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| ©Parliamentary copyright 2000 | Prepared 30 October 2000 |
