Clause 190 - Surveillance powers

Enterprise Bill – in a Public Bill Committee am 6:30 pm ar 23 Ebrill 2002.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Question proposed, That the clause stand part of the Bill.

Photo of Jonathan Djanogly Jonathan Djanogly Ceidwadwyr, Huntingdon

Is it right to give the chairman of the OFT, who will most likely be a business man selected by the Government, the power to authorise the planting of surveillance equipment in residential or hotel premises or private vehicles? In an earlier debate, the Under-Secretary said that would happen only where it had to be done urgently. One can normally have access to a judge fairly urgently and I do not think that this proposal is appropriate. Why is the use of surveillance not to be authorised by a judge on a case-by-case basis? Is there any precedent for such surveillance powers to be given on this basis or will the Regulation of Investigatory Powers Act 2000 set a new course in that respect?

Photo of Mark Field Mark Field Ceidwadwyr, Cities of London and Westminster

I have grave concerns about some of the civil liberties implications of this proposal. I hope that it is not simply a matter of the measure being lifted intact from the 1987 Act and plonked into the relevant slot in this Bill. Extensive surveillance powers are being given to the OFT, which is predominantly an investigative as opposed to a prosecution body. The powers seem not only excessive, but possibly unnecessary. I would be interested in having guidance, both to alleviate the concerns expressed by my hon. Friend the Member for Huntingdon and myself, and to give me some idea why the powers are so extensive.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

Like other hon. Members, I have some concerns about granting powers to the chairman of the OFT in such circumstances. The powers are fairly wide ranging, and I would be much happier if I thought that there was some judicial or even ministerial scrutiny that does not appear in the Bill. The clause will amend the Regulation of Investigatory Powers Act 2000. I wish to canvass the Minister on whether it is necessary to amend the Regulation of Investigatory Powers (Scotland) Act 2000, too. Perhaps she can erase my concerns on that point. As I understand it, it is not consistent with the Scottish Act to grant such powers. I am concerned that there might be no scrutiny other than that of the investigatory body.

Miss Johnson: I am sure that everyone agrees that appropriate surveillance powers are a necessary and effective tool for investigating cartels. The clause amends the Regulation of Investigatory Powers Act 2000 to grant the OFT intrusive surveillance powers in the United Kingdom. With those powers, the chairman may authorise the planting of surveillance devices in residential premises, including hotel accommodation, and in private vehicles. In the chairman's absence, and in an urgent case, a senior OFT officer designated for the purpose may also grant an authorisation.

We all know that cartels operate under cover. They are difficult to detect and are often set up at clandestine meetings held in neutral territory such as hotels. Few records are kept—although good records were kept in the Christie's and Sotheby's case, but I should imagine that that was a bit unusual. The use of surveillance powers could provide irrefutable evidence in court of participation in cartel activity. It is in the public interest to gain evidence about a cartel and lead a successful prosecution. For example, in the case of a cartel for lysine, an additive widely used in animal feed, the United States authorities obtained video evidence that showed cartel members in hotel rooms concluding their deals. It was decisive evidence in securing convictions for offences committed over four years.

The powers are necessarily strong. The intrusive surveillance powers will only be used in the most serious cases and when the OFT has specific information about a meeting from an informant. There are important safeguards. All the safeguards in the Regulation of Investigatory Powers Act 2000 will apply. For authorisation of an application for intrusive surveillance under the 2000 Act, its use must be proportionate to what is sought to be achieved, and it must also meet one of three criteria. The one that will apply for the cartel offence is that the intrusive surveillance is necessary

''for the purpose of preventing or detecting serious crime''.

It must be the case that the information could not reasonably be obtained by other means. All applications for authorisations are subject to the scrutiny and approval of surveillance commissioners appointed under the 2000 Act. The clause restricts the purpose for which the OFT can use intrusive surveillance to prevent or detect the cartel's criminal offence. The OFT cannot apply the powers for the purposes of any of its civil investigations.

When an authorisation is granted, the OFT intends to outsource the technical deployment of the intrusive surveillance activity to public authorities that already have access to those powers, and practical experience of exercising them. I accept that the powers are strong, but we believe that they are justified, necessary and proportionate. Cartels are secretive arrangements that can be successfully detected and prosecuted only with adequate powers of investigation, so I trust that hon. Members will accept that they are necessary.

We do not believe that we need to amend the Scottish equivalent of the Regulation of Investigatory Powers Act. We are taking section 46 of that Act, and

the OFT will effectively become a cross-barrier body and will be able to use the powers in the Act in Scotland, too. I hope that that answers all the points made by the hon. Member for Orkney and Shetland. I commend the clause to the Committee.

Question put and agreed to.

Clause 190 ordered to stand part of the Bill.

Clause 191 ordered to stand part of the Bill.