By the Select Committee appointed to report whether the provisions of any bill inappropriately delegate legislative power, or whether they subject the exercise of legislative power to an inappropriate degree of parliamentary scrutiny; to report on documents laid before Parliament under section 3(3) of the Deregulation and Contracting Out Act 1994 and on draft orders laid under section 1(4) of that Act; and to perform, in respect of such documents and orders, the functions performed in respect of other instruments by the Joint Committee on Statutory Instruments.

ORDERED TO REPORT

INTRODUCTION

1. According to the Home Office's Memorandum, printed in the Annex to this report, this bill is intended to:

• update the law on the interception of communications;
• tighten up the regime for the acquisition of communications data;
• regulate the use of surveillance by public authorities;
• regulate the use of covert human intelligence sources by public authorities;
• introduce a power for access to protected electronic data; and
• establish an oversight and redress regime for the use of all of these powers.[1]

2. Part I of the Bill deals with the interception of communications (both postal and telecommunications) and replaces the Interception of Communications Act 1985 which is repealed by the bill (except for an amendment to the Telecommunications Act 1984). Part I also covers the acquisition and disclosure of communications data. Part II deals with "surveillance and covert human intelligence sources". Part III is concerned with the investigation of electronic data protected by encryption. Part IV provides for the appointments of Commissioners to scrutinise investigatory powers and the functions of the Intelligence Services and establishes a Tribunal to consider complaints.

3. The Home Office Memorandum identifies the delegated powers in the bill and the Parliamentary controls over them and gives a brief account of the justification for taking delegated powers. This report comments only on those powers which have raised significant issues for the Committee. Any bill which is concerned with the interception of communications, intrusive surveillance, covert surveillance and similar matters is bound to be controversial but the Committee's remit is confined to delegated powers. The Committee has examined the powers in the bill with particular care because of their significance in the context of provisions which are in themselves controversial.

4. The Committee also received a memorandum from JUSTICE and this is also printed in the Annex.

5. The Committee has two major concerns about the delegated powers in the bill. These were indicated to the Minister and front bench spokemen on the bill in writing on 24 May, in the hope that this might not only inform the Second Reading debate but also enable officials to start work on any related amendments thought to be necessary to the Bill for Committee stage. During the Second Reading debate the Minister indicated that the Government was minded to accept these recommendations.[2]

6. As each of these concerns relates to several clauses, it seems appropriate to discuss those issues first and then to consider the bill in clause order.

PURPOSES FOR WHICH INVESTIGATORY POWERS MAY BE GRANTED

7. Five provisions in the bill list the purposes for which particular investigatory powers may be exercised. The first is clause 5(3) which lists three purposes (paragraph (d) is not an independent fourth purpose but an "international" form of paragraph (b)). The others are clauses 21(2), 27(3), 28(3) and 65(3) (see the new subsection (4) inserted in section 5 of the Wireless Telegraphy Act 1949). Each of these has six purposes in common with the others. Clause 21(2) has a seventh purpose (in an emergency, preventing death, injury or damage to health). All four end with a power given to the Secretary of State to specify any other purpose for the purposes of the Clause. The Committee is of opinion that the defining of the purposes for which an investigatory power may be used is a vital part of placing restrictions on the exercise of those powers and does not consider it to be appropriate to delegate to the Secretary of State what appears to be an unlimited power to specify other purposes. We therefore examined with particular care the justification given in the Memorandum for these powers.

8. The commentary on clause 21 points out that the list of purposes in the clause is narrower than the legitimate purposes in Article 8(2) of the European Convention on Human Rights and that the protection of morals and the protection of the rights and freedoms of others had been omitted deliberately. The Memorandum says that the need to make use of those exceptions may emerge over time. The notes in the Memorandum on clauses 27, 28 and 65 simply refer back to that on clause 21. It appears, therefore, that the apparently unlimited powers in all four clauses may be intended to allow no more than the addition of the protection of morals and the rights and freedoms of others to the purposes set out in those clauses. If this is so, why are the powers not limited in this way? Paragraph 19 of the Memorandum argues that section 6 of the Human Rights Act will apply and that the powers are thus constrained by Article 8(2) "although that limitation need not appear on the face of the bill." The Committee does not accept that it is appropriate to use wide terms to define a new power and to rely on the Human Rights Act to restrict its scope when it is possible to define it so that it covers only its intended scope.

9. The Committee draws the House's attention to the width of the powers in clauses 21(2), 27(3), 28(3) and 65 in contrast to their intended use and invites the House to consider whether those clauses should be amended to limit the powers to correspond with the use that Ministers apparently intend to make of them.

10. All four powers are subject to negative procedure. Whether or not they are amended their content is of such significance that the Committee is of opinion that affirmative procedure is appropriate.

PERSONS WHO MAY BE AUTHORISED TO EXERCISE INVESTIGATORY POWERS

11. Four clauses list the persons who may be granted warrants or other authority to exercise investigatory powers. The first is clause 6(2) which lists the heads of various police and intelligence services, Customs and Excise and the competent authority of a country seeking assistence under any international mutual assistance agreements. The others are clauses 24(1), 29(4) and 39(1) each of which contains a short list of public authorities but also a power to add any other public authority (the individual to represent each public authority is specified by an order made by the Secretary of State). The Committee considers that delegation in this open-ended way is inappropriate in a bill concerned with such important issues of human rights - the significance of an investigatory power cannot be judged in isolation but must be considered in the light of the number and character of the persons who may exercise it.

12. The Memorandum deals with each power in turn. In the case of clause 24 it comments that "there are many other public authorities with investigatory functions which could obtain communications data to help fulfil their statutory functions. They will need to be named by order if they are to use the power in this Bill rather than the permissive provision in the Data Protection Act 1998" but adds "there are no current plans to add to the list in clause 24 but it will be important for the Secretary of State to keep the list under review and to update it as necessary". The note on clause 29 comments that "there are a number of other public authorities that currently carry out directed surveillance and benefit from covert human intelligence sources" and adds that "this matter is considered appropriate for subordinate legislation at present, because of the need to resolve with the Scottish Executive the right extent provision in respect of each authority before any designation can be made. The list of authorities will change from time to time and the Secretary of State will keep the list under review and will need to update it as necessary." The note on clause 39 comments "Intrusive surveillance is the highest level of surveillance permitted under Part II. At present applications for intrusive surveillance are limited to law enforcement bodies, intelligence agencies and organs of the Ministry of Defence" but the Memorandum adds "However, the position could change over time and more authorities may need to use these techniques in order to combat serious crime."

13. The Committee sees two possible uses for the powers in clauses 24, 29 and 39 - to take account of changes affecting authorities listed in the bill and to add new bodies. The Committee accepts that the first is an appropriate matter to delegate but the second is not. Parliament should decide which existing public authorities should be granted the powers. New public authorities created in the future will almost certainly be created by legislation which could amend the bill to give powers to the new authority. If circumstances should change and there is a case for conferring the powers on an existing authority not named in the bill, that is a matter of sufficient importance to require primary legislation.

14. The Committee does not regard negative procedure as appropriate for any of these powers, which clearly merit the affirmative procedure. Different considerations would apply to a power limited to naming the successor body if one of those named in the bill is abolished or some of its functions transferred to another body; the Committee accepts that negative procedure would be appropriate for such a power, as it is for the powers (discussed below) to remove bodies from the lists.

CLAUSE 4

15. This clause authorises interception of telecommunications in certain circumstances defined in the clause. Interception authorised by this clause does not require a warrant under clause 5. Subsection (1) is concerned with communications from or to a person outside the U.K.; subsection (2) with legitimate business practices involving the business's apparatus or services; subsection (4) with prisons; and subsection (5) with high security hospitals.

16. Subsection (1) contains in paragraphs (a) to (e) conditions which have to be satisfied before "overseas" communications can be intercepted under the clause. Paragraph (d) is the condition that "the situation is one in relation to which such further conditions as may be prescribed by regulations ... are required to be satisfied before conduct may be treated as authorised by virtue of this subsection". If no regulations have been made, no situation is such that further conditions have to be satisfied and interception would be lawful if conditions (a) to (c) were satisfied. The Memorandum explains that there may be a need to impose further conditions in relation to certain situations and paragraphs (d) and (e) make appropriate provision for this. The Committee sees negative procedure (provided by clause 69(3)) as appropriate for a power which can only increase the restraints on intercepting communications.

17. Subsection (2) contains a separate regulation-making power also subject to negative procedure. This allows the Secretary of State to authorise interception by a business for the purpose of monitoring or keeping a record of business transactions or "other communications relating to that business or taking place in the course of its being carried on". Subsection (3) limits subsection (2) to the interception of communications "in the course of ... transmission using apparatus or services provided by or to the person carrying on the business for use wholly or partly in connection with that business". That limitation has the effect that interception authorised by regulations under subsection (2) must take place on the business premises (or somewhere else under the control of the business or of a person contracted to provide telephone services to the business) and not during the transmission of the communications on the public network.

18. The Home Office memorandum justifies the power in subsection (2) in the following terms:

"Subordinate legislation is considered appropriate for this because detailed provisions will be necessary, will change over a period of time, and may have to apply to widely different kinds of business practice. The balance between the protection of privacy and the legitimate concerns of businesses is a delicate one which will undoubtedly be affected by developments in technology."[3]

The Committee accepts that the balance is a delicate one but, in view of the limited purposes for which interception may be allowed, considers that negative procedure is appropriate even though this is a power to authorise interception.

CLAUSE 12

19. Subsection (1) enables the Secretary of State to make orders placing on the providers of public postal services or public telecommunications services the duty of making arrangements to be able to comply with interception warrants under the bill. Subsection (6) requires consultation and subsection (7) imposes affirmative procedure, which the Committee considers appropriate for what the Home Office memorandum recognises is an important provision.[4]

CLAUSE 21

20. This clause deals with the obtaining and disclosing of communications data (defined in clause 20(4)) where it is necessary for one of the purposes listed in subsection (2). Paragraph (h) of that subsection, which has been discussed earlier, allows the Secretary of State by order (subject to negative procedure) to add to the list of purposes.

CLAUSE 22

21. This clause deals with the form and duration of authorisations under clause 21(3). That provision allows "the designated person" to authorise another person in the same public authority to "engage in any conduct to which this Chapter applies" (i.e. to require communications data to be disclosed or obtained and disclosed). The relevant public authorities are listed in clause 24(1) (police, Customs and Excise and the intelligence services) and the designated persons for each are those holding "such offices, ranks or positions" as may be prescribed under clause 24(2).

22. Subsection (8) of clause 22 provides that as soon as the person who gave notice under clause 21(4) requiring disclosure is satisfied that the notice no longer satisfies the requirements of the bill "he shall cancel the notice". But what if the person who gave the notice is no longer available to do that? Subsection (9) provides the answer by way of a regulation-making power subject to negative procedure. The Committee is satisfied that this power is necessary, and that negative procedure should provide the appropriate degree of parliamentary control for it.

CLAUSE 24

23. Subsection (2) of clause 24 provides power to prescribe the persons who are to be the persons designated to act in respect of the public authorities listed in subsection (1). An order under that power is subject to negative procedure as are orders under subsections (1)(f), (3) and (4). The first of these is a power to specify one or more other authorities as public authorities for the purposes of clauses 20 to 24, and has been discussed earlier. Subsection (3) allows the Secretary of State to limit the power of the delegated person to appoint another person to exercise the powers of a delegated person under these clauses. Subsection (4) allows an order to remove "for the time being" an authority from the list of relevant authorities. Because it does not involve an amendment to the text the Committee does not regard this as a Henry VIII power. The Committee considers that the powers in subsections (2), (3) and (4) are appropriate delegations and that negative procedure is appropriate for each.

CLAUSE 27

24. This clause is concerned with the grant of authorisation for the carrying out of directed surveillance (defined in clause 25(2)). An authorisation can only be granted for one of the purposes set out in subsection (3) but paragraph (g) of that subsection allows an order to specify further purposes. This power has been discussed earlier.

CLAUSE 28

25. This clause is concerned with the grant of authorisation "for the conduct or the use of a covert human intelligence source", this somewhat surprising term is defined in clause 25(6) to (8)). Subsection (2) allows the grant of an authorisation only if the requirements of subsection (2) are satisfied. One of these is "that arrangements exist for the source's case that satisfy the requirements of subsection (5) and such other requirements as may be imposed by order made by the Secretary of State". This power to add further protection is subject to negative procedure. The Committee considers this appropriate, since, as the Home Office memorandum explains, the provision "will only be used to further the protection given to ... [certain categories of covert] sources."[5]

26. Subsection (3) provides that an authorisation may be granted only for one of the purposes set out in that subsection. Paragraph (g) allows the Secretary of State to specify additional purposes. This power has been discussed earlier.

27. Subsection (6) allows the Secretary of State to make an order to prohibit the authorisation under the clause of conduct or uses described in the order or to impose additional requirements which must be satisfied before any authorisation of conduct or uses described in the order. Negative procedure applies, which the Committee considers appropriate for a power to add safeguards.

CLAUSE 29

28. This clause deals with the persons entitled to grant authorisations under clauses 27 and 28 and includes provision similar to that in clause 24. The power in clause 29(1) is similar to that in clause 24(2); the power in clause 29(4)(h) is similar to that in clause 24(1); and the power in clause 29(3) is similar to that in clause 24(3). The later provisions (subsections (5) to (11)) are concerned with who may make orders under the clause. Subsection (5) empowers the Secretary of State to do so and subsections (6) to (11) allow the power to be exercised also for Northern Ireland by the First Minister and deputy First Minister acting jointly.

29. The Committee has no comments to make on subsections (2) and (3) which are subject to negative procedure. The power in subsection (4)(h) is a power to add other authorities to the list in that subsection and has been discussed earlier in our comments on clause 24.

CLAUSE 33

30. Subsection (1) provides that a person who grants or cancels "a police or customs authorisation for the carrying out of intrusive surveillance" (defined in clause 25(3)) shall notify "an ordinary Surveillance Commissioner" (defined in clause 72(1) as "a Surveillance Commissioner other than the Chief Surveillance Commissioner" - see clause 53 for the appointment of Commissioners). The matters to be included in a notice are to be specified by order (subsection (2)(c)). An order is subject to draft affirmative procedure (subsection (5)) save that the first order is subject to the procedure which is normally provided as the emergency procedure as an alternative to draft affirmative procedure (see subsections (7) and (8)). The Home Office memorandum explains that this is to achieve a commencement date for Part II before the Human Rights Act comes into force.[6] The Committee considers both the provisions and the parliamentary procedure provided for them appropriate.

CLAUSE 39

31. This clause regulates the grant by the Secretary of State of authorisations for "intrusive surveillance" - the highest level of surveillance permitted under part II.[7] Subsection (1) lists those who can apply for such an authorisation. Subsection (1)(d) (with subsection (3)) allows the Secretary of State by order to designate other public authorities so that "an individual holding an office, rank or position" with such an authority may apply for authorisations. This power has been discussed earlier in our comments on clause 24.

32. Subsection (5) allows the Secretary of State to make an order (subject to negative procedure) imposing restrictions on the grant of authorisation. Presumably he could achieve much the same result by exercising his discretion to grant authorisation but the Committee sees obvious advantage in having the more important rules set out in an order.

CLAUSE 41

33. This clause contains general rules about the grant, renewal and duration of authorisations for directed surveillance, intrusive surveillance or the conduct and use of covert human intelligence sources. Subsection (8) allows the Secretary of State to provide by order shorter periods for the validity of an authorisation than those set out in subsection (3). Negative procedure applies. As the order can only reduce the duration of an authorisation, the Committee considers this an appropriate provision.

CLAUSE 42

34. This clause makes special rules for authorisations granted to the intelligence services (such authorisations are excluded from clause 41 by subsection (10) of that clause). Subsection (6) makes provision corresponding to that in clause 41(8). Negative procedure applies, which the Committee considers appropriate.

CLAUSE 43

35. This clause deals with the cancellation of authorisations as soon as the need for them has gone. Subsections (4) and (5) allow the Secretary of State to make regulations about who is to cancel an authorisation when the person required to do so by subsections (1) to (3) is no longer available. This power is very similar to that in clause 22(8). Negative procedure applies, which the Committee considers appropriate.

CLAUSE 44

36. This clause gives the Secretary of State power to make an order doing either or both of:-

(a) applying Part II of the bill (with or without modifications) to other forms of surveillance which are "neither directed nor intrusive";

(b) providing for "any description of directed surveillance to be treated ... as intrusive surveillance".

The effect of applying Part II of the bill to a kind of surveillance to which it does not apply at present would be to place restrictions on the use of that kind of surveillance and to provide remedies to those who believe that their rights have been infringed. The effect of providing that a description of directed surveillance is to be treated as intrusive surveillance would be to apply a more restrictive regime to that surveillance. In either case the order would increase the protection for the individual and the Committee sees nothing here to draw to the attention of the House.

CLAUSES 57 AND 58

37. Subsection (1) of clause 57 establishes the Tribunal and subsection (2) sets out their jurisdiction. Subsection (2)(d) allows the Secretary of State to make an order extending that jurisdiction to "such proceedings falling within subsection (3) as may be allocated to them in accordance with" the provisions of the order. Subsection (3) list proceedings against the intelligence services or other persons in respect of the conduct of those services and "proceedings relating to the taking place in any challengeable circumstances of any conduct falling within subsection (5)". Subsection (5) contains a list which is limited by subsection (6) and "challengeable circumstances" is defined in subsections (7) and (8). The definition in subsections (10) and (11) are also relevant.

38. Clause 58 regulates the making of orders under clause 57. The most significant provision is that in subsection (1)(a) which allows an order to give the Tribunal exclusive jurisdiction in relation to particular proceedings allocated to the Tribunal by the order. If the order does this, it must empower the Tribunal to remit the matter to the appropriate court or tribunal (subsection (1)(b)). Subsection (2) lists particular matters to which the Secretary of State is to have regard when making an order. Subsection (3) applies affirmative procedure.

39. The Committee considered this power with particular care, but concluded that it was appropriate as part of the process of providing a remedy without depriving the investigatory powers of their effectiveness.

CLAUSE 59

40. This clause deals with the exercise of the Tribunal's jurisdiction. Subsection (8) provides that the decisions of the Tribunal "shall not be subject to appeal or be liable to be questioned in any court" but provides an exception to this by giving power to the Secretary of State to make an order. Such an order must allow for an appeal to a court against any exercise by the Tribunal of their jurisdiction under clause 57(2)(c) (complaint of detriment in civil proceedings because of the exclusion under clause 16 of evidence in those proceedings) or (d) (proceedings allocated to Tribunal by Order made by Secretary of State). The order may include any provisions in subsection (10). These include the creation "of a tribunal or body to hear appeals"; the conferring of jurisdiction to hear appeals on any existing court or tribunal; and provision in relation to appeals under the order such as may be made by rules under clause 61. That clause is discussed below but for present purposes the important powers are those about the admissibility of evidence (subsection (2)(g)) and excluding the complainant from the hearing (subsection (4)(b) and (c)). Subsection (11) applies affirmative procedure.

41. The exclusion of jurisdiction by subsection (8) will attract debate but the Committee sees the order-making as appropriate as part of the process of creating remedies where none exists at present and recognises the need for safeguards to ensure the continued effectiveness of the investigatory powers with which the bill is concerned.

CLAUSE 61

42. Clause 60 deals with the procedure of the Tribunal. Subsection (1) provides that "Subject to any rules under section 61, the Tribunal shall be entitled to determine their own procedure ...". Clause 61 confers on the Secretary of State wide powers to make rules regulating the exercise by the Tribunal of their jurisdiction. All the provisions of the clause are important. Subsection (6) sets out the matters to which the Secretary of State is to have particular regard in making rules. In effect he has to balance the need to secure that a case is properly heard and considered and the need to protect the country from damaging disclosure of information. Subsection (8) applies the normal affirmative draft procedure but the first order is regulated by subsections (9) to (10) which provide, in effect, the procedure frequently provided for making orders in an emergency.

43. The Home Office's memorandum explains the case for the unusual procedural arrangements in the following terms:

"The standard affirmative resolution procedure is displaced for the first exercise of this power. Those rules will instead come into force on making, and must be approved by subsequent resolution. This procedure is more normally found in situations of urgency. Its adoption here is prompted by the Government's intention to bring the Human Rights Act into force on 2 October. The department intends that parts of the Bill, and in particular Part II, should be in force by that date in order to give a proper legal basis for surveillance. In order for Part II to be compliant with the Convention, the Tribunal's complaints function must be in force by that date, and it is highly desirable that it should assume its jurisdiction for the purposes of section 7 of the Human Rights Act also. The timing of the summer recess means that rules would be unlikely to be approved before 2 October."[8]

The Committee accepts the need for this special procedure.

CLAUSE 63

44. This clause provides for the Secretary of State to issue codes of practice "relating to the exercise and performance of the powers and duties" arising under Parts I to III of the bill, section 5 of the Intelligence Services Act 1994 (warrants) and Part III of the Police Act 1997 (authorisation by police and customs and excise of interference with property or wireless telepathy). Clause 64 states the effect of codes of practice. Clearly these codes are of great importance. Subsections (3) to (9) regulate the making of orders. Subsection (3) requires public consultation; subsection (4) requires a draft to be laid before Parliament; subsection (5) provides for a code to be brought into force by an order made by the Secretary of State; and subsection (9) applies affirmative procedure to that order, which the Committee considers appropriate in view of the great importance attaching to these orders.

CLAUSE 65

45. This clause amends section 5 of the Wireless Telegraphy Act 1949 - the amendments are concerned with the interception and disclosure of wireless telegraphy messages. At present section 5 consists of two paragraphs, the first (not affected by the bill) creates an offence of sending misleading messages, the second, an offence of intercepting (paragraph (b)(i)) or disclosing (paragraph (b)(ii)) messages without, in either case, having "the authority of [the Postmaster General] or, being a servant of the Crown, acting in the course of his duty". Subsection (2) substitutes for those lawful justifications for interception and disclosure the test of acting under the authority of a designated person. Subsection (3) adds 10 new subsections to section 5 about the grant of authority for the purposes of that section. New subsection (11) defines "designated person" as the Secretary of State, the Commissioners of Customs and Excise and any other person designated by regulations made by the Secretary of State (section 16(2) of the 1949 Act applies negative procedure). Subsection (10) defines "separate authority" as authority given otherwise than under the substantive provisions of the bill. Subsection (3)(a) limits the giving of authority to cases where it is necessary on grounds within subsection (4) or (5). Subsection (4)(g) is "any purpose ... which is specified ... by regulations made by the Secretary of State" (again negative procedure is applied). Subsection (7) requires authorisation to be signed by the Secretary of State, one of the Commissioners of Customs and Excise or "a person ... designated ... by regulations made by the Secretary of State" (again negative procedure is applied).

46. The Committee has commented earlier on the power in subsection (4)(g) but sees nothing else in this clause which needs to be drawn to the attention of the House.

RECOMMENDATIONS

47. While there are serious concerns about the bill, most of these relate to the substantive provisions and the Committee sees the majority of the delegated powers as appropriate delegation subject to the appropriate level of Parliamentary control.

48. The Committee's concerns about the delegated powers in this bill relate to two main groups. There are four provisions in the bill which authorise surveillance or other action for specified purposes but allow the list of purposes to be extended by subordinate legislation (in clauses 21(2)(h), 27(3)(g), 28(3)(g) and 65(3)). The scope of these significant investigatory powers is not determined by the bill, and so by the decision of Parliament, but can be extended to "any purpose" specified by an order made by the Secretary of State, subject to negative procedure - which is clearly inappropriate. The Committee can see no justification for the use of language which is apparently at large but which is intended to be limited in practice by the Human Rights Act. In its view, if these powers are to remain in the Bill they should be explicitly limited on the face of the bill to the protection of morals and the protection of the rights and freedom of others. They should also be made subject to the affirmative resolution procedure.

49. The second group of powers raises more complex issues. Clause 24(1)(f) contains a power for the Secretary of State to specify other public authorities, again by an order subject to the negative resolution procedure. The Committee considered this significant power together with the similar powers in clauses 29(4) and 39(1). In each case powers are conferred on a "relevant public authority" and the bill contains a list of those authorities which are to be able to exercise the powers but allows an order to add authorities to the list. During the passage of the bill through the Commons it became apparent that as many as 32 public authorities might be added to what is currently a list of only seven on the face of the bill. The Committee considers this delegation, in an area which touches on the rights of the individual, inappropriate. In its view the bill should be amended to list all the public authorities which the Government wishes to have the power, and any amendment should be limited to changes made necessary "because structures within an authority may change, making it necessary to update amend the order" (Home Office memorandum, paragraph 41). Any such order should, in the Committee's view, be subject to the affirmative resolution procedure.

50. The Committee considers that no other amendment is necessary either to the delegated powers in the bill or to the parliamentary control provided for these powers.[9]