My Lords, these orders bring into force revised codes of practice under Part 2 of the Regulation of Investigatory Powers Act 2000. The codes of practice have been revised to reflect changes that the Government have made to the Part 2 provisions on covert surveillance and the use of covert human intelligence sources since the codes were last revised in 2010. The codes also give guidance on property interference, an action which necessitates authorisation under separate legislation, but which will often form part of a wider covert operation.
I believe it is accepted that, faced with the sophistication of the methods employed by modern-day criminals, our law enforcement agencies sometimes need to operate covertly in order to prevent or detect serious crime, but those powers must be deployed extremely carefully and properly balanced against individual rights, including the right to privacy.
The Regulation of Investigatory Powers Act 2000, or RIPA as we know it, provides a statutory framework for public authority use of a number of covert techniques likely to acquire private information, including the techniques covered by the codes of practice concerned here, and ensures that their use is compatible with an individual’s right to privacy.
The Act provided a number of safeguards to prevent misuse of the powers, including clear authorisation procedures and independent scrutiny of the use of the powers by the Office of Surveillance Commissioners and the Intelligence Services Commissioner. RIPA and its associated codes of practice have greatly improved
control and oversight of how public authorities use covert investigatory techniques. However, the Government keep a close eye on the regime to ensure that it is working as intended and, when improvements have been identified, we have acted to put these into place. I will briefly outline the main changes which have been incorporated into these revised codes.
First, in response to concerns about use of covert surveillance by local authorities to investigate relatively minor matters in England and Wales, local authorities’ use of these powers has been restricted so that they can now use directed surveillance only to investigate criminal offences which either attract sentences of at least six months’ imprisonment or relate to the underage sale of alcohol or tobacco. In addition, in all cases, decisions by local authorities to grant or renew the authorisation of covert techniques will only take effect once an order approving the authorisation has been granted by a justice of the peace. These changes were made in Part 2 of the Protection of Freedoms Act 2012.
To improve confidence in the decision-making and authorisation of undercover deployments, RIPA has been amended to allow an independent body, the Office of Surveillance Commissioners, to provide enhanced oversight of all undercover law enforcement deployments. Law enforcement agencies are now required to notify the surveillance commissioners of an undercover deployment at its outset and must seek prior approval from the commissioners for all deployments that last longer than 12 months. We have also increased the rank at which undercover deployments are authorised.
The revised codes were the subject of a public consultation exercise in February and March this year. We received responses from 126 organisations and individuals, details of which we will publish on the Home Office website, following an undertaking given by us during the debate on these orders in another place, once we have obtained permission from the respondents. The consultation provided additional recommendations for changes to the codes.
One of the main concerns related to undercover officers forming inappropriate relationships in the course of their duties. To address this, the College of Policing has issued a code of ethics which states clearly that officers must not engage in sexual conduct while on duty, and shall not establish or pursue an improper sexual or emotional relationship with a person with whom they come into contact in the course of their work. The revised Covert Human Intelligence Sources code of practice in turn specifies that all police officers deployed as undercover officers in England and Wales must, of course, comply with and uphold the principles and standards of professional behaviour set out in the code of ethics.
I turn to other changes. The Covert Human Intelligence Sources code also includes a clarification that law enforcement agencies must seek an authorisation when developing a cover persona, an activity known as “legend building”, if the activity will interfere with an individual’s Article 8 rights. This change was made to ensure consistency and that proper consideration is given to privacy and proportionality in all undercover deployments, irrespective of the nature of the deployment. The HMIC report into undercover policing published
on 14 October highlighted this as a concern and I am pleased that we have already taken steps to address it. In addition, in response to feedback, a number of more technical amendments have been made to the codes to provide greater clarity for those authorising and using covert techniques.
The changes that I have described today clarify the way in which the law enforcement agencies can use these intrusive powers, and consolidate the changes we have made to ensure that the right level of oversight and authorisation is in place. They ensure that the powers can be used only when it is necessary and proportionate, when it will help to keep us safe from harm. I commend the orders to the House.
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