Introduction

1.1 One of JUSTICE's principal concerns with the Regulation of Investigatory Powers Bill is the significant reliance the Bill places on secondary legislation. In many respects, the Bill provides only a framework for regulation, to be given substance and form by ministerial orders and (as yet unpublished) codes of practice. As the scope and purpose of these delegated powers are not set out with any clarity, the exact ambit of the Bill remains indeterminate.

1.2 This is particularly unsatisfactory in relation to legislation that sets serious limits to rights. As it is not possible to assess fully the human rights compliance of some of the activities, it cannot be assumed with any certainty that the Bill, when taken in conjunction with the secondary legislation, will comply with European Convention on Human Rights (ECHR) standards and with the Human Rights Act 1998 (HRA). In these circumstances, it is questionable how a section 19 HRA statement of compatibility can be made with any confidence. It also raises a question of the extent to which the Bill complies with the principle that interference with rights must be prescribed by law.

1.3 As no statement of compatibility needs to be made in relation to delegated legislation, JUSTICE believes that it is crucial that drafts of such legislation (including the codes) be available for consideration alongside the primary legislation during the course of the Bill's passage. As yet, nothing has materialised despite various indications that they would be made available.

1.4 JUSTICE acknowledges that the scope of certain of the delegated powers in the Bill has been limited by amendments made in the House of Commons. In particular, we welcome the amendment made to clause 44 of the Bill, limiting the order making powers of the Secretary of State to designate "intrusive" surveillance as "directed" surveillance. We also welcome the amendments to clause 6 of the Bill, which remove the Ministerial order-making power to add to the list of those who may apply for the issue of an interception warrant. However, there remain several delegated powers provisions which give cause for serious concern, and which do not adequately ensure compliance with the Human Rights Act. Below, we detail our most serious concerns in this regard.

PART I: Interception of Communications

CLAUSES 21 AND 24: ACQUISITION AND DISCLOSURE OF COMMUNICATIONS DATA

1.5 Clause 21 which sets out the grounds to justify the acquisition and disclosure of communications data[10] could potentially breach Article 8 privacy rights. Clauses 21(2)(a) - (g) list a comprehensive set of grounds on which such data may be legitimately acquired and disclosed. These include the interests of national security, the prevention of crime, the protection of public health etc. They cover - and indeed may go beyond - the range of grounds on which, under Article 8.2 of the ECHR, it is permissible to interfere with the right to private life. The Article 8.2 grounds not expressly listed are the protection of morals, and the protection of the rights and freedoms of others. However, as the Home Office admits, it is unlikely that there would be a need to authorise the disclosure of communications data on these grounds.

1.6 However, clause 21(2)(h) allows the Secretary of State to extend these grounds by order, subject to a negative resolution procedure. As the main grounds of Article 8.2 are already listed, it is difficult to see how any additional grounds will comply with Article 8, unless they relate to the protection of morals or the protection of the rights of others. Any perceived need to cater for these two grounds would not seem to justify the inclusion of such a broad delegated power, with the potential to breach ECHR rights. JUSTICE therefore believes that clause 21(2)(h) should either be deleted from the Bill or be limited to the two remaining grounds of Article 8(2).

1.7 Under the Bill, the disclosure of communications data is to be authorised by a 'designated person' from one of the 'relevant public authorities' (see clause 21 and clauses 24(1) and (2)). The latter includes a police force, NCIS, NCS, Customs and Excise, and the intelligence services. Clause 24 (1)(f) also allows the Secretary of State the power to specify any public authority not listed in clause 24. No limitations are set out on the face of the Bill as to the public authorities that may be so specified. The order-making power is subject to a negative resolution procedure.

1.8 In view of the recent disclosure in Committee that the Secretary of State intends to add some 32 other agencies under a similar order-making power under clause 29 (see below), JUSTICE believes that the intended purpose of this particular power should be seriously questioned. In particular, the Home Office should be asked to give details of other public authorities that are, or are likely to be, given the power to acquire communications data in the future. In order to comply with Article 8 ECHR it is important that there is sufficient justification for each public authority to act in a way which interferes with rights; the issue should not therefore merely be left to adding a list at a later stage. In any event, we believe the order-making power is too broad and should be limited to the addition of only those public authorities undertaking a law enforcement role. We would also prefer to see the order being subject to the positive resolution procedure.

1.9 Further order making powers are contained in clause 24(2) to prescribe the procedure for identifying the "delegated persons" who may authorise the acquisition of communications data. It allows the Secretary of State to prescribe by order the office holders or ranks of officials within the relevant public authorities. As prior authorisation is a key safeguard under Article 8, further details should be made available regarding the status of those who are to be prescribed as 'designated persons' under this clause.

PART II: Surveillance and Covert Human Intellegence Sources

CLAUSES 27 AND 28: AUTHORISATION OF 'DIRECTED SURVEILLANCE' AND THE USE OF COVERT HUMAN INTELLIGENCE SOURCES

2.1 Similar broad order-making powers are included under clauses 27 and 28, which set out the grounds on which 'directed surveillance' and the use of covert human intelligence sources may be authorised respectively. Again, the Secretary of State's power to add to the permissible grounds raises the same issues of risking compliance with Article 8.2 as discussed above. In light of the fact that the Minister, Charles Clarke, said at Committee Stage in the House of Commons that he could not see any reason why either should be authorised on grounds of the protection of morals or the protection of the rights and freedoms of others, JUSTICE believes that such powers should be deleted from the Bill.

CLAUSE 29: PERSONS ENTITLED TO GRANT AUTHORISATIONS UNDER SECTIONS 27 AND 28

2.2 The order-making power under clause 29(4)(h) to add to the agencies who may authorise 'directed surveillance' or the use of covert human intelligence sources led to some surprise revelations in debates in the House of Commons. It was announced that it is intended to designate some 32 other agencies stages. These include a wide range of government departments and public authorities such as the Immigration Service, the Benefits Agency, the Inland Revenue, the Food Standards Agency, the Post Office, the Vehicle Inspectorate, MAFF, the Pesticides Safety Directorate and all local authorities.

2.3 JUSTICE objects to this on two main grounds. First, that the proposal is an abuse of the delegated procedures: additions of this nature should be included on the face of the Bill. As a result of Opposition amendments, the Minister, Charles Clarke, indicated at Report stage that he would consider including the agencies in a schedule, with a power to add at a later stage. JUSTICE believes that this is, at least, preferable as it provides greater legal certainty and guidance as to the range of public authorities involved.

2.4 Secondly, and possibly more importantly, we believe it is insufficient to include these agencies merely on the basis that they have 'indicated their wish to continue their use of these techniques'.[11] As it is acknowledged that the Home Office was unaware of the current use of covert surveillance by many of these agencies, it is essential that a proper inquiry is carried out to ensure that the use of such techniques by each agency 'is necessary and proportionate' to justify inclusion. On several occasions, the ECtHR has, for example, said that the use of surveillance should be limited to 'serious and defined offences' and that it should not be exploratory or general.[12] It should also be limited to those cases where conventional means of inquiry are ineffective or have been unsuccessful. Each agencies request to be included in these surveillance powers need to be tested against these requirements.

2.5 A further issue in relation to clause 29 is that the order-making power is subject to a negative resolution procedure only. We believe that this is seriously at odds with the significance of the powers involved, and with their considerable potential to infringe privacy rights and Article 8 of the Convention.

CLAUSE 39: 'INTRUSIVE SURVEILLANCE' BY PUBLIC AUTHORITIES

2.6 The Secretary of State may add to those agencies who may carry out "intrusive surveillance" under clause 39(1)(d). This is in relation to authorisations which have to be approved by the Secretary of State, rather than by the Surveillance Commissioner.

2.7 In Committee, Ms Jane Kennedy, Parliamentary Secretary at the Lord Chancellor's Department, said that the only agency which the government envisaged adding under this clause was the Department of Social Security. This begs several questions: first, why this agency is not included on the face of the Bill? Second, why is the authorisation procedure to the Secretary of State rather than the Commissioner, as it is for the other law enforcement authorities? And, third, why is it necessary to have such a wide 'catch-all' clause in the circumstances? Given the significant potential of 'intrusive surveillance' to interfere with the protection of private life, it is particularly important to clarify the limits of its use. JUSTICE considers that the government should be asked to justify the inclusion of such a broad order-making power in clause 39.

CLAUSE 44: CLASSIFICATION AS 'INTRUSIVE' OR 'DIRECTED' SURVEILLANCE

2.8 The powers of the Secretary of State under clause 44 to shift the boundaries of what is considered to be 'directed' or 'intrusive' surveillance have been limited by amendments passed at Report stage. The power is now confined to providing that a description of 'directed surveillance' is to be treated as 'intrusive surveillance'. Contrary to the earlier drafts of the clause, 'intrusive surveillance' cannot now be re-designated as 'directed surveillance'. However, the Secretary of State retains the further power to extend the application of Part II of the Bill to any surveillance that does not meet the threshold of either 'directed' or 'intrusive surveillance'.

2.9 This modification of clause 44 meets the serious concerns expressed by JUSTICE and others at Committee stage that the Secretary of State could 'allocate' surveillance conduct in a way that would be incompatible with human rights. However, we remain concerned that the delegated powers under cl. 44 could lead to uncertainty in the application of the Bill's provisions, and therefore violate the principle under Article 8 that any interference 'prescribed by law' must be clear and accessible and certain in its scope as to the circumstances in which an interference may be authorised. Given the possible serious consequences of 'intrusive surveillance', and the need for legal certainty with regard to it, JUSTICE would favour the deletion of clause 44 in its entirety.

Part IV: Complaints Tribunal

3.1 As we detail in our human rights audit report, significant aspects of the Tribunal's procedures are subject to delegated legislation. It is therefore difficult to assess the extent to which it is intended to remedy the kind of shortcomings that JUSTICE has identified in relation to the existing tribunals.

3.2 In this respect, we would specifically refer the Committee to paras. 6.8 - 6.12 of the audit report which deals with the issues of applying judicial review principles, oral hearing and disclosure of evidence, reasoned decision and appeals. As the delegated power provisions fail to give a proper indication of what procedures are to be enacted and in what circumstances, it is again essential that the Home Office be asked to publish draft rules etc. under this part of the Bill whilst it is being debated in the Lords.

20 May 2000