Serious Crime Bill [Lords]

I present to the House new clause 5, which stands in my name and the names of my hon. Friends; amendment No. 83 is consequential to it. Through its long title, the Bill offers us the opportunity of looking at the working of the Regulation of Investigatory Powers Act 2000, to which the Government have proposed minor amendments. RIPA, as it is known, is an extremely controversial statute. It was introduced to provide an overarching framework under which material could be obtained by Government agencies for a number of purposes set out in the legislation. The argument was that by setting out an overarching structure, we would simplify existing rules, which provide law enforcement agencies with a variety of powers to obtain data communications material. I should make it clear that historically there has been absolutely no doubt that such material is required by law enforcement agencies. RIPA followed on—this is rather an important aspect of the matter—from the anti-terrorism measures of 2000, in which the Government came to a voluntary agreement with service providers that the Government would retain data for counter-terrorism purposes. However, when RIPA came on to the statute book, it became apparent that far from being confined to the purposes of anti-terrorism, the material—which, under that voluntary agreement, was retained for 12 months—would be made available for a much wider range of uses. Those uses included not only the ones that one might normally expect for preventing crime, but use in connection with"““the interests of the economic well-being of the United Kingdom””," and"““the purpose of protecting public health””," as well as public safety, emergencies, collecting taxes and, most significantly of all,"““for any purpose…which is specified for the purposes of this subsection by an order made by the Secretary of State””," even if that purpose was not included in the main body of RIPA's text. RIPA specified a number of public authorities whose inclusion most Members would regard as absolutely straightforward—police forces, the National Criminal Intelligence Service, the National Crime Squad, Customs and Excise, Inland Revenue and intelligence services—but in addition it provided a catch-all phrase, which allowed the inclusion of"““any such public authority not falling within””" the list"““as may be specified…by the Secretary of State.””" Since then, if my research is correct, three statutory instruments have been made by the Government, producing an extremely long list of public authorities that may gain access to such material for a variety of purposes. Again, it might be said in this House that some of the inclusions are understandable; for example, the emergency services are included, for the purposes of investigating crime—in that case, I think that the crime is likely to be hoax calls. However, the list goes on to include the Department of Trade and Industry, the Department for Transport, the Department for Environment, Food and Rural Affairs, the Food Standards Agency, the Department of Health, Home Office immigration services, county and district councils, the Charity Commission, the Environment Agency, the Gaming Board, the Information Commissioner, universal service providers—that is essentially the Post Office—and the Postal Services Commission. And the list goes on. The vast majority of the bodies listed are included for the purposes of detecting or preventing crime, but that prompts the question whether it is a proportionate use of RIPA's draconian powers to apply them to such purposes. The criminality that a large number of the organisations mentioned are likely to investigate is not of the most serious kind. Let us take as an example the Health and Safety Executive, which our new clause would preserve in the list. I have prosecuted quite frequently for the HSE, and I accept that there may be times when, in the course of bringing a prosecution, getting hold of data relating to telephone calls that a person might have made could be useful, but the irony is that that power has always existed for use in the course of criminal proceedings. If someone thinks that they will need such material, they can always apply to the judge during the proceedings, and that applies to every single one of the organisations with which we are concerned. What the Government have done is provide a general power, not for the purposes of prosecuting a case, but for background investigation of the activities of individuals, where that might be necessary for the prevention of crime. It is also noteworthy that at least one of the powers in RIPA—that in clause 28(3)(c), which relates to"““the interests of the economic well-being of the United Kingdom””—" has, as far as I am aware, never been used. Its use would be a rather controversial subject, particularly if it was not linked to criminality. When the original RIPA rules were presented in Committee upstairs, there was a storm of protest, particularly because the Government introduced the rules, and had the debate, before the publication of the report by the Joint Committee on Human Rights, which highlighted the fact that it thought that many of the powers being granted might well not pass the proportionality test, if they were challenged. Of course, one of the problems that we have is that challenging the powers is difficult, because most people will never know that they have been investigated, and that the powers have been used. Of course, the Information Commissioner can look into those matters, but individuals may well have their privacy invaded without ever being able to protest, because they will never have known about it. In view of that, we thought it right to try to encourage the Government to revisit the issue during the passage of the Bill. New clause 5 is designed to allow just that. It preserves the inclusion of the public authorities that were originally provided for in RIPA—police forces, intelligence services and the like—but would merely add:"““(g) an ambulance service or fire authority;""(h) the Health and Safety Executive””—" because we recognise that public safety cases may require such investigation—"““(i) the Serious Fraud Office””" and, most importantly,"““(j) any such other public authority not falling within””" the list that I gave"““carrying out duties of a similar type””." The purpose is to restrict the further list of public authorities essentially to the normal law enforcement agencies, and not, as is the case under the Bill, progressively to widen the scope, with the distinct possibility—and this is the most worrying prospect—that it could be further widened in future simply by statutory instrument. Recently, RIPA's entire architecture has been subject criticism, as the Minister will know, by a roundabout route. As a result of an EU directive implemented by the Government, the voluntary agreement on the retention of material has become permanent with the service suppliers, and the Government now have access through the EU directive to the information to which they had access under that agreement. That raises an interesting issue—and I hope that the Minister can answer this point—as we introduced a voluntary agreement designed specifically to deal with terrorism that was extended much further in RIPA. Through an EU directive, the boundaries of the provision have extended far beyond what was originally envisaged in the voluntary agreement effectively to cover every aspect of Government activity in this country. That is not a happy state of affairs, and although I accept that new clause 5 is reticent in tackling the underlying problems in the legislation, which may require radical amendment, it at least offers us an opportunity to reconsider the road that we took when RIPA was passed. I do not think that the issue is going to go away: the public concern that has been expressed is entirely legitimate, and there is growing anxiety about the extent to which we may be creeping into a surveillance society. One of the arguments made for RIPA was that it would bring under one umbrella all the state's investigatory powers to obtain information on communications retention. However, that has not happened, as far as I am aware. Departments such as the Department for Work and Pensions have completely separate powers, enacted by the House, which undermines the need for RIPA in the first place. I hope that the Minister will respond to my concerns and consider carefully whether, in fact, there are not better ways in which to proceed. I do not entertain huge hopes that we will succeed this evening in a Division, but I hope that at least the new clause will send the Minister a signal that the matter ought to be revisited, preferably by the Government after further consultation, because it raises the question of creeping, incremental powers for the state, which is not desirable without further debate. As often happens in the House, we have succeeded in putting together a package that will have a substantial impact on the liberty of the individual without appreciating the full force of what we are about. I hope that the Minister will respond positively to the proposal, even if he does not support the new clause, and explain how the Government propose to approach those problems in future.