HOUSE OF COMMONS STANDING COMMITTEE STAGE
1.1 Part II provides the framework for authorising three forms of covert surveillance:
· ‘directed surveillance’
· ‘intrusive surveillance’
· the use and conduct of ‘covert human intelligence sources’ (informers, agents and undercover officers)
1.2 ‘Directed surveillance’ and the use of ‘covert human intelligence sources’ require the lesser control of self-authorisation from a designated person within the agency undertaking the action; whereas, ‘intrusive surveillance’ requires approval from a High Court judge acting as a Commissioner before it can take effect.
1.3 On a general point, the Explanatory Memorandum makes it clear that Part II (in common with other parts of the Bill) do not impose a requirement on public authorities to seek or obtain an authorisation for surveillance. Unlike Part I where there is a criminal offence and a (limited) civil tort of unlawful interception, Part II creates no such penalties, other than the action may be unlawful under section 6 of the Human Rights Act 1998 if it is not so authorised. JUSTICE believes that this is an insufficient safeguard in an area of activity where the risk of abuse is high but the likelihood of it being uncovered is very low. The Bill should impose a duty to obtain an authorisation for surveillance under Part II, with appropriate criminal and civil penalties for failing to do so.
2.1 Directed surveillance’ is covert surveillance of individuals during a specific but non-intrusive investigation’ (our emphasis). Surveillance is covert where it is carried out in such a way to ensure that those targeted are unaware that it is taking place (cl.25(8)). ‘Surveillance’ is defined as including any monitoring, observing and listening to persons, their movements, conversations or other activities or communications. It also includes any recording of such activity and surveillance by or with assistance of a device (cl.45(2).
2.2 On the basis of these definitions, it is difficult to see what activities fall within ‘directed surveillance’, bearing in mind the important distinction that such conduct has to remain non-intrusive (cl.25(2)). It may be argued that monitoring a targeted person’s activities in a public place with the assistance of a video camera is non-intrusive and therefore ‘directed surveillance’. In practice, the surveillance activities are likely to be more complicated. The question of intrusion by surveillance (and the consequent triggering of Art 8 rights) depends on a number of factors: its duration, location, intensity, frequency and the use of a technical device. The longer surveillance continues, the more private the place where the person is observed, the greater the intensity or frequency of the surveillance activities, and the more options offered by the use of technical devices, the greater the chance that it will amount to intrusive surveillance.
2.3 For example, it is well-established in ECHR cases that an intrusion into a person’s privacy extends beyond the intimacy of the home. For example, in Niemietz v Germany the ECtHR held that a person is entitled to a degree of privacy in professional and business relationships at the workplace. In doing so, it made it clear that ‘respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings.’ In the same way, the US Supreme Court held as long ago as 1967 that privacy rights ‘protect people, not places’.
2.4 JUSTICE believes that all covert surveillance (as defined in the Bill) has the potential for intrusion which is why it has to be regulated for compliance with Art 8 ECHR. Therefore, the distinction drawn in the Bill between conduct which is ‘not intrusive’ (i.e. ‘directed surveillance’) and that which is intrusive (i.e. ‘intrusive surveillance’) is artificial and open to challenge. And, as we detail below, it also creates some particular anomalies. However, we accept (not least for practical purposes) that the Bill needs to draw a distinction between activities that are less intrusive and those that have the potential to be highly intrusive.
2.5 One possibility is to draw this distinction in terms of the location of the surveillance. For example, the Data Protection Commissioner has recommended that, in any event, the definition of ‘intrusive surveillance’ should be widened to include any premises or location where the individual has a legitimate expectation of privacy. The Irish Law Reform Commission made a similar recommendation in a recent report on privacy and surveillance. And this is also reflected in the laws of other countries: for example, the Canadian Criminal Code requires judicial authorisation of video surveillance when the person targeted might reasonably have an expectation of privacy. Examples of such places – a doctor’s surgery, an MP’s private office, a restaurant and a public place – would need to be fully illustrated in a code of practice.
3.2 For example, under cl.25(5) a surveillance device used from outside residential premises or a private vehicle that does not consistently provide the same quality and detail ‘as might be expected’ from a device actually present on the premises is not to be considered as intrusive. Thus using a remote listening device located away from a house or a long lens photographic equipment will fall within either ‘directed’ or ‘intrusive surveillance’, depending on its recording qualities.
3.3 JUSTICE believes that if the intention is to observe, listen to or capture images of a person in residential premises (or anywhere where there is an expectation of privacy) through the use of a technical device, it must be assumed that the action is likely to be intrusive, irrespective of the quality of material actually obtained. As the Data Protection Commissioner has said, the fact that a picture from a long lens camera might not be quite as clear as from a camera placed in the room does not necessarily make the infringement of privacy any less. And, from a practical standpoint, how is the quality of the information to be anticipated in advance, so as to know which procedures to follow? Following the wrong procedures risks the conduct being unlawful and the material inadmissible as evidence. The exemption in clause 25(5) should be deleted from the Bill.
3.4 Another example is the way in which the Bill deals with interceptions of a communication where one party to the communication consents to the intercept. As explained at paras. 3.6 – 3.10 in our human rights audit of Part I of the Bill, this practice is known as ‘participant monitoring’ and is particularly relevant in cases where undercover police or informers are used to extract evidence from suspects. Under the Interception of Communications Act 1985 such a practice was exempt from the warrant procedures and safeguards.
3.5 Under this Bill, such conduct is again to be exempt from the Part I controls and the controls required by ‘intrusive surveillance’ in Part II (Cl.25(4)(b) and 45(4)). Although not expressly mentioned in the Bill itself, the Explanatory Memorandum says that it is intended that such conduct will come within the lesser controls of ‘directed surveillance’ (see para.178) – that is, it will be treated as surveillance conduct which is covert but not intrusive.
3.6 JUSTICE believes that this represents a clear breach of the requirements of Art 8 ECHR. The conduct remains highly intrusive of the privacy rights of the non-consenting party who is being targeted. Under Art 8, this person is entitled to the same level of safeguards as any other person whose private communication is being intercepted by a state agency.
3.7 As we said in our Part I briefing, in the recent case of Lambert v France (1999), the ECtHR considered a judgment of the French Court of Cassation which had denied legal remedy to a person whose telephone calls had been intercepted on a friend’s line. It held that, as a matter of principle, Art 8 protects people, not telephone lines. This is in line with the reasoning in the leading Canadian case of R v Duarte (1990) when the Supreme Court held that a ‘participant monitoring’ exemption directly contradicted the principle that it is the person whose privacy is being infringed who should be afforded safeguards. The exemptions in clauses 25(4)(b) and 45(4) should be deleted from the Bill.
3.8 Interference with Art 8 privacy rights is only lawful if it is undertaken on the grounds falling within Art 8(2) (see Annex I). It is unclear therefore why under cl. 27(3)(f) ‘directed surveillance’ may be authorised for the purpose of assessment and collection of a tax, duty, levy etc. Either the collection of tax is a legitimate purpose that falls within one of the other grounds under cl.27 or it is not an aim that may be pursued under Art 8. This is the same for cl.28(3)(f) in relation to the use of covert human intelligence sources. Clauses 27(3)(f) and 28(3)(f) should be deleted from the Bill.
3.9 Many of the detailed controls - particularly in Part II of the Bill - are to be set out in orders and codes of practice. As mentioned in our briefing on Part I, this poses problems in assuming that the Bill will operate in a way that is human rights compliant. For example, under cl.27(3)(g) the Secretary of State has apparently unfettered power to add to the permissible grounds on which ‘directed surveillance’ may be authorised. This is the same for the use of covert human intelligence sources under cl.28(3)(g). Similarly, the Home Secretary has an unfettered power to add to the list of agencies who may authorise ‘directed surveillance’ or the use of covert human intelligence sources under cl. 29(4)(h). JUSTICE believes that the Home Secretary should be asked to justify the inclusion of these wide provisions. In particular, he should be asked to specify the nature of any other ‘purpose’ that could be included in the future and likewise identify which agencies might be added. In the absence of a satisfactory justification that ensures compliance with Art 8, the clauses should be deleted from the Bill.
3.10 Similarly, the Home Secretary should be asked to identify the ‘designated persons’ who are to authorise ‘directed surveillance’ and the use of covert human intelligence sources.
4.1 Intrusive surveillance’ is defined as covert surveillance in relation to anything taking place on residential premises or a private vehicle. It may be carried out either by a person or device inside residential premises or a private vehicle or by a device placed outside. This is intended to cover the gaps in Part III of the Police Act 1997 which only applies to devices whose installation involves trespass to property, criminal damage or interference with wireless telegraphy. It means that stand-off devices such as long-distance microphones and laser-beam equipment fall outside the controls of Part III. However, it needs to be clarified whether another loop hole in Part III which allows the police to place a bug with the consent of the owner of property still remains. This means, for example, that police and prison cells may be bugged without having to go through any of the statutory controls for authorisation.
4.2 JUSTICE believes it would be preferable to repeal Part III of the Police Act 1997 Act and provide for a single, comprehensive regime for all forms of intrusive surveillance within this Bill. Instead, a complex regime has been created which allows a single authorisation to cover both an application under this Bill and under Part III of the Police Act, although the different provisions of each are still to apply (cl.31(5)). Further, the authorisation procedure differs according to the agency making the application: the police and customs are to apply to a Commissioner in the same way as under Part III of the Police Act; the intelligence services, Ministry of Defence and Armed Forces must apply to the Secretary of State. An application made by the intelligence services may be combined with an application for a warrant under the Intelligence Services Act 1994.
4.3 A major point about ‘intrusive surveillance’ is that it is too narrowly defined in the Bill. It fails to acknowledge that the ECtHR has made it clear that Art 8 privacy rights can be engaged outside residential premises and private vehicles (see para. 2.3 above). As the Data Protection Commissioner has recommended, the definition in cl.25(3) needs to be widened to include any premises or location where the individual has a legitimate expectation of privacy.
4.4 In relation to the authorisation procedures involving the Surveillance Commissioner, JUSTICE has the following comments:
· In an age of new technology, we question whether it is necessary to treat
urgent applications differently (cl.33(3)(b)) thereby allowing the conduct to go ahead without prior approval of the Commissioner. As this is also provided for in Part III of the Police Act, the Home Office should be asked to provide details of how often it has been relied upon since that Act came into force. The experience in other countries such as Australia is that authorising judges are able to respond quickly and there is no evidence o suggest that a requirement for prior approval in all cases has an adverse effect on police operations.
· The Commissioner should have the power to attach specific conditions to a warrant. These may be restrictions or limitations on who, how, when, where or what kind of surveillance may be undertaken. This is common practice in other countries. The annual figures published under the Canadian Criminal Code show that conditions are attached in the majority of authorisations for electronic surveillance: in 1998 the figure was 98%.
· Strict rules covering legal or otherwise privileged material should be included on the face of the legislation and not left to a code of practice. This is the approach taken under sections 98 -100 of Part III of the Police Act and should therefore be followed in this Bill. The ECtHR in Kopp v Switzerland (1999) said that the law must make it clear how professional legal privilege was to be protected in practice.
· The Commissioner should be required, for example, to quash an authorisation if s/he is satisfied at any time that there are no reasonable grounds on which it should continue. Under cl. 35 the Commissioner has a discretion whether to do so in relation to this and other matters. The word 'may’ in sub-clauses (2), (3), (4) and (5) should be replaced by ‘shall’.
· Before any renewal of an authorisation, the Commissioner should be satisfied that a review has been carried out on the surveillance already undertaken and take account of its results. This is a requirement for the renewal of a cover human intelligence source authorisation under cl.41(6) and should apply to all forms of surveillance under Part II.
4.5 In relation to the authorisation procedures involving the Secretary of State, JUSTICE has the following comments:
· As the Security Service (MI5) has the power to carry out investigative policing activities under its new remit of being tasked to investigate serious crime, there are strong arguments that these powers should be exercised under the same procedures as apply to the police. Otherwise there are obvious dangers in two agencies having different powers and operating to different procedures when tackling the same threat of serious crime.
· The Secretary of State has an unfettered power to extend the ‘public authorities’ who may carry out ‘intrusive surveillance’ under cl.39(1)(d). For the same reasons mentioned above, the Home Secretary should be asked to justify this provision and identify the authorities that may be included in the future.
· Again, there are no strict rules covering legal and other privileged material (see above)
· A warrant for ‘intrusive surveillance’ granted to the intelligence services has a duration of six months (cl.42(4) as compared to three months for police and other law enforcement authorisations (cl.41(3)(c). The Home Secretary should be asked to justify this difference.
4.6 The wide powers given to the Secretary of State in cl.44 to modify the provisions of Part II are unacceptable. In particular, the power to order that ‘intrusive surveillance’ activities be treated as ‘directed surveillance’ and vice versa runs the serious risk of the Secretary of State being able to legally ‘allocate’ surveillance conduct in a way that is incompatible with human rights. It also violates the principle under Art 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. This is in recognition of the very real dangers inherent in covert surveillance activities. JUSTICE believes that cl.44 should either be deleted or, alternatively, severely restricted in what it permits.
4.7 JUSTICE particularly welcomes the provisions placing the use and conduct of informers and undercover officers under statutory control. This need for operational control over such persons has recently been endorsed by the ECtHR in the Teixeira de Castro v Portugal case in relation to a ‘buy and bust’ undercover drugs operation.
4.8 However, we also appreciate the difficulties in providing a statutory framework that has to cover a wide range of activities. At one end, an informer may be a person who merely gives information to the police; at the other extreme, he or she may be actively engaged in the commission of an offence. And in terms of undercover policing, there are fine gradations between involvement, incitement and entrapment. However, the role played by the informer or undercover officer will determine the degree of intrusion and therefore the level of safeguards required.
4.9 JUSTICE believes that in order to comply with the requirements of Art 8 ECHR the Bill needs to draw a distinction between different categories of informers and undercover police work. Currently under cl.25(7) of the Bill, a cover human intelligence source is defined in relatively benign terms: essentially it is a person (informer or police officer) who maintains a covert relationship with a suspected criminal in order to obtain and pass-on information. It does not specifically recognise the conduct of participating informers who are persons ‘engaged in a course of action which, without authority, could lead or could have led to his/her arrest and prosecution’ or undercover officers who actively set up a ‘buy and bust’ or ‘sting’ operation.
4.10 In the recent case of Kopp v Switzerland (1998), the ECtHR severely criticised the practice of internal, executive authorisation, without supervision by an independent judge, in relation to surveillance activities. It is therefore questionable whether self-authorisation within an agency would be considered a sufficient safeguard in relation to the activities of participating informers and undercover officers in serious crime cases. It could also be argued that the case of Teixeira de Castro v Portugal places additional weight on the need for independent authorisation and supervision in undercover operations if the exercise is not to breach ECHR rights. JUSTICE believes that it may therefore be necessary to draw a distinction whereby the use of participating informers and undercover officers in serious crime cases be made subject to prior authorisation by a judge. This should apply equally to informers run by the police and agents run by the intelligence services, for example.
4.11 In any event, as the Bill is presently drafted, it creates certain anomalies in relation to activities that are similarly intrusive. For instance, under cl.45(3)(a) an informer who is ‘wired-up’ to record a conversation in a suspect’s home is only to be subject to the lesser, self-authorisation procedures governing covert human intelligence sources. However, if the recording had been obtained by placing a bug on or outside the suspect’s home, prior approval from a Commissioner would have been required under either Part III of the Police Act 1997 or under Part II of this Bill. JUSTICE believes that the authorisation procedures should properly reflect the nature of the operation and its intrusiveness and, as far as possible, be consistent in relation to activities of a similar intrusive nature.
4.12 The duration of an authorisation to use a covert human intelligence source is twelve months, with a similar period for renewal (cl.41(3)(b). JUSTICE believes that this is too long, especially in the case of participating informers and undercover operations.
 The agencies are the police, NCIS, NCS, any of the intelligence services, the Ministry of Defence, any of the armed forces, Customs and Excise. These may be added to by order of the Secretary of State.
 Response of the Data Protection Commissioner to the Government’s Regulation of Investigatory Powers Bill, March 2000.
 This is discussed in detail at p.18 in the JUSTICE report: Under Surveillance
 Now to include the British Transport Police
 ACPO Code of Practice, 1999.