WARRANTS (Hansard, 17 January 1989)

HC Deb 17 January 1989 vol 145 cc257-81 257

§ Mr. Richard Shepherd
I beg to move amendment No. 56, in page 2, line 10, at beginning insert— '() Where the Director-General believes, on reasonable grounds, that a warrant under this section is required to enable the Service to investigate a threat to national security, he may after having obtained the approval of the Solicitor General, make an application in accordance with the provisions of this section.'.

The First Deputy Chairman
With this it will be convenient to consider the following amendments:
No. 58, in page 2, line 11, leave out 'the Secretary of State' and insert 'an order of a Judge of the High Court upon application by the Service'. No. 94, in page 2, line 12, at end insert 'but this section shall not exclude an application to court for a judicial review of the reasons for the issue of the warrant and the consequent actions'. No. 59, in page 2, line 13, leave out subsections (2) to (7) and insert— '(2) An application to a judge for a warrant under subsection (1) shall be made ex parte in writing and be accompanied by an affidavit of the applicant deposing to the following matters, namely—

(a) the facts relied upon to justify the belief, on reasonable grounds, that a warrant under this section is required to enable the Service to obtain information which is likely to be of substantial value in assisting the Service to discharge its functions;

(b) that other investigative procedures have been tried and have failed or why it appears that they are unlikely to succeed, that the urgency of the matter is such that it would be impractical to carry out the investigation using only other investigative procedures;

(c) the type of information, records, documents or things proposed to be obtained and the powers referred to in paragraphs (a) to (c) of subsection (3) below proposed to be exercised for that purpose;

(d) the identity of the person, if known, who has possession of the information, record, document or thing proposed to be obtained;

(e) the persons or class of persons to whom the warrant is proposed to be directed;

(f) a general description of the place where the warrant is proposed to be executed, if a general description of that place can be given;

(g) the period, not exceeding sixty days or six months, as the case may be, for which the warrant is requested to be in force that is applicable by virtue of subsection (5); and

(h) any previous application made in relation to a person identified in the affidavit pursuant to paragraph (d), the date on which such application was made, the name of the judge to whom each such application was made and the decision of the judge thereon.
(3) Notwithstanding any other law, where the judge to whom an application under subsection (1) is made is satisfied of the matters referred to in paragraphs (a) and (b) of subsection (2) set out in the affidavit accompanying the application, the judge may issue a warrant authorising the persons to whom it is directed to obtain any information, record, document or thing and, for that purpose,
(a) to enter any place or open or obtain access to any thing;

(b) to search for, remove or return, or examine, take extracts from or make copies of or record in any other manner the information, record, document or thing; or

(c) to install, maintain or remove any thing.
(4) There shall be specified in a warrant issued under subsection (3)— 258
(a) the type of information, records, documents or things authorised to be obtained and the powers referred to in paragraphs (3)(a) to (c) authorised to be exercised for that purpose;

(b) the identity of the person, if known, who has possession of the information, record, document or thing to be obtained;

(c) the person or classes of persons to whom the warrant is directed;

(d) a general description of the place where the warrant may be executed, if a general description of that place can be given;

(e) the period for which the warrant is in force; and

(f) such terms and conditions as the judge considers advisable in the public interest.
(5) A warrant shall not be issued under subsection (3) for a period exceeding—
(a) sixty days where the warrant is issued to enable the Service to investigate a threat to national security within the meaning of paragraph (d) of the definition of that expression in subsection (2) of section 1; or

(b) six months in any other case.
(6) On application in writing to a judge for the renewal of a warrant issued under subsection (3) made by a person entitled to apply for such a warrant after having obtained the approval of the Solicitor General, the judge may, from time to time, renew the warrant for a period not exceeding the period for which the warrant may be issued pursuant to subsection (5) if satisfied by evidence on oath that
(a) the warrant continues to be required to enable the Service to investigate a threat to national security; and

(b) any of the matters referred to in paragraph (b) of subsection (2) are applicable in the circumstances.
(7) The Director-General shall be under a duty—
(a) to apply in writing to a judge requesting the cancellation of a warrant at any time when he reasonably believes that the action authorised is no longer necessary;

(b) to destroy forthwith any information, record, document or thing obtained as a result of the exercise of the warrant and which does not relate to the individual named in the warrant;

(c) to destroy forthwith any information, record, document or thing which proves to be irrelevant to the investigation for the purposes of which the warrant is issued.
(8) An application under subsection (1) to a judge for a warrant or a renewal of a warrant shall be heard in private. (9) The Solicitor General may make regulations—
(a) prescribing the forms of warrants that may be issued under subsection (3);

(b) governing the practice and procedure of, and security requirements applicable to, hearings of applications for such warrants and for renewals of such warrants; and

(c) notwithstanding the Rules of the Supreme Court 1965 as amended, specifying the places where such hearings may be held and the places where, and the manner in which, records or documents concerning such hearings shall be kept.'.
No. 95, in page 2, leave out lines 29 to 32 and insert 'by a Minister in his Department'.

§ Mr. Shepherd
Amendments Nos. 56, 58 and 59 relate to the judicial issuing of warrants. An integral part of the scheme to give the checks and balances that are needed in the Bill was a requirement that warrants be issued by a judge. The amendments set out the terms and conditions under which the warrants would be issued. I am mindful that hon. Members are becoming impatient, but it is an essential concept that it should not be an arbitrary power, albeit that it is laid down in statute—if that is not a contradiction in terms—that determines that a warrant be issued.
Under the arrangements that we were seeking to make in the Bill to give the checks and balances which we hoped 259 would make the Bill conform to the democratic requirements, it was necessary for the director-general of the Security Service to seek the permission of the Home Secretary or the responsible Minister who would authorise the application for a warrant. The director-general of the Security Service would then apply to a judge and these criteria would have to be satisfied. The omission from the Government scheme is that the issuing of a warrant will not be subject to any judicial authority. It will be solely an administrative decision taken by the Executive, and that is worrying.
I know that the Government are well aware that this is contrary to the principle recommended by the Royal Commission on criminal procedure, that a person who is to be the subject of, for example, electronic surveillance should have his interests represented by the Official Solicitor or a similar body at a hearing prior to authorisation by a judicial authority. I am not certain whether that could be accommodated. I am also worried that the procedure is contrary to the procedures adopted by the United States and most European countries. Our amendments reflect what the Home Secretary referred to as the Canadian cloth. It is worrying lest a questionable practice is being included in the Bill, following the European Court judgment in Klass v. Federal Republic of Germany, which questioned
whether an administrative decision without judicial authority would meet the court's requirement of independence 'in a field where abuse is potentially so easy in individual cases and could have such harmful consequences for democratic society as a whole'. 10.30 pm
I will not delay the Committee by going through each part of the amendment. It is designed to ensure that the rule of law prevails—that the Executive is subject to a degree of independent scrutiny from the judiciary and that the actions of the judiciary in a narrowly defined way are subject to those tests.
That is an important principle of our system of government, but in the Bill it is done away with for a number of things. The worry is that now that we have no definition of "national security" we are in the position, as we have said when debating earlier amendments, that, whatever the Home Secretary says is national security, it now becomes a lawful basis on which to enter premises.
Thus, the criterion that we were seeking—a definition of "national security"—is not available for a judge to endorse when granting a warrant. Our purpose is to try, at each stage of the Bill, to ensure the continued democratic values and protections of society. That comes down to ministerial responsibility, with the services being responsible to Ministers.
A judicial review of these aspects is necessary, for without those protections none of us can be free people.Otherwise it means the arbitrary power of the Home Secretary determining what he perceives to be a threat to national security, perhaps on the advice of the security services, and that could be the object of the scrutiny of the state through the surveillance of or entry on to premises. There is no safeguard of this judicial intervention.
That was the reason for having, in addition, independent oversight, plus the Government's proposed commissioner or what we would have described under other amendments as the inspector-general. That would 260 have put all the necessary forms in place, with an inspector-general to review the warrants after they were issued to ensure that the purposes, duties and intent of the warrants were met by the Security Service in the execution of the warrants.
In addition, those warrants could be scrutinised by an independent review committee comprised of, we suggest, Privy Councillors who could be within or without the House. That was designed to meet the anxieties of many hon. Members on these Benches who fear that genuine Security Service matters could suffer were there to be any extension of what is called the circle of secrecy.
We do not see how this can be a reasonable Bill without there being some judicial oversight to ensure that the warrant that is issued conforms with the functions, needs and tasks of the Security Service.

§ Mr. Cryer
I endorse the comments of the hon. Member for Aldridge-Brownhills (Mr. Shepherd), who will agree that the amendments standing in my name, Nos. 94 and 95, are simpler than his. After the opening words of clause 3: No entry on or interference with property shall be unlawful if it is authorised by a warrant issued by the Secretary of State under this section my amendment No. 94 would add: but this section shall not exclude an application to court for a judicial review of the reasons for the issue of the warrant and the consequent actions.". It appears very final for the House to say to anyone, including a Minister, that he can interfere with property through burglary, which is normally a serious criminal offence, albeit on the understanding that members of the security services are trying to protect us from terrorism or in the interests of national security, although that is very loosely defined. It could be in the interests of protecting the Prime Minister's reputation or position. Such wide definitions are possible under the terms of the Bill.
This is a serious matter. People will be burgled unjustly and mistakenly. The security services contain people who will be less than effective. We have already heard about the way in which Michael Bettaney was selected at a time when he was drinking a bottle of whisky a day. The security services people operate in a twilight world. They cannot say around the table what they do. They cannot say, when the brown Windsor soup and other courses are out of the way, "I work for the security services and our work is very interesting." It is not that sort of job. They have to be secretive and, at some stage, they must deceive a number of people by lying about their occupation. That places stress and strain on them and can produce fumbled judgments and mistaken decisions. As a consequence, they can burgle people mistakenly and, in pursuit of such burglaries, possibly injure or harm people to cover up their operations.
It is therefore reasonable that we should not be prepared to say that, simply because a warrant has been issued, there can be no challenge and that nothing done in pursuance of the issue of that warrant is unlawful. That is quite outrageous. My first amendment does not exclude the possibility of a judicial review of the reasons for the issue of the warrant and the consequent actions". The Minister may say that we must give absolute sanctions to the people who carry out the duties laid down in the warrant. Under the Bill, the commissioner will be a senior member of the judiciary. The Minister may say that the 261 Government place great store by members of the judiciary and, if the Government place great store by them, why should not the ordinary citizen do so if he feels aggrieved and has direct access to the courts, irrespective of the complaints procedure established in the Bill?
My second amendment states that a warrant shall not be issued except under the hand of the Secretary of State. There is a confused jumble in which a warrant can be issued when the Secretary of State says that it is all right to do so. It is endorsed by him and can be issued under the hand of an official of his Department.
Too much work is given to Secretaries of State. We appoint junior Ministers and there is in every Department, particularly the Home Department, a junior Minister on duty when the Secretary of State is out of the country. We should not hand such a duty to an official, no matter how senior. The proposal in the Bill presents difficulties and possibilities for misinterpretations. My amendment simply states that a warrant shall be issued under the hand of the Secretary of State or a Minister in his Department. It will be clear that, when the Secretary of State has gone off to some conference of Common Market Home Office Ministers and their equivalents, the junior Minister who is in charge will be given the task of authorising warrants. I know that it is unusual for junior Ministers to be given important jobs, but junior Ministers are appointed and are part of the Government. When they make mistakes they are accountable, and sometimes the Government are embarrassed by their errors and discreetly get rid of them, so a junior Minister would be responsible for making sensible decisions. After all, junior Ministers sit in the House, and it would be wrong in principle if the Government, in producing the legislation, were prepared to hand over a very important task to a senior official "of or above Grade 3"—a description which smacks of "Brave New World".
My amendment No. 95 simply places an obligation on the elected Government Ministers of the day to carry out the duty which they consider to be so important. I hope that my modest attempts to improve the Bill—which I do not like very much—will lead the Minister to recognise the attempts by the Committee to improve the degree of accountability and accept the amendments. That would save the time of the Committee.

§ Mr. Aitken
I support the amendment so ably moved by my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd). I support the principle that he enunciated of the desirability of having the judiciary rather than the Home Secretary in charge of the warrants. I shall not develop the same theme, because, given my views on the possible lack of infallibility of the Secretary of State, it is obvious that I should support it.
I wish to develop the argument that was touched on by the hon. Member for Bradford, South (Mr. Cryer) relating to the issue of warrants by the Secretary of State. We already know that my right hon. Friend the Home Secretary and my hon. Friend the Minister of State have the strictest possible instructions not to make any concessions towards accepting any amendment so that the dreaded thought of a Report stage must be avoided at all costs. No matter how badly the Bill is drafted or how awful a dent is being made in our civil liberties, no amendments are to be conceded. However, I think that I have found a 262 classic example of how MI5, the drafters of the Bill, have shot themselves in the foot disastrously and will have to amend the Bill.
Clause 3(3) deals with the issuing of a warrant. It states: A warrant shall not be issued under this section except—
(a) under the hand of the Secretary of State: or

(b) in an urgent case where the Secretary of State has expressly authorised its issue".
Presumably, when the Secretary of State is in the north of Scotland, he can authorise a warrant by telephone and an official in his Deprtment can sign it.
The problem is that that scenario concentrates all warrant authorisation by signature or on the telephone exclusively and entirely in the hands of the Secretary of State. That is unworkable as there will be many occasions when the security services need a warrant quite quickly and the Secretary of State is unobtainable. For example, I understand that the Secretary of State is to visit the kingdom of Saudi Arabia. It is a semi-official visit, but knowing something of the hospitality there, I have no doubt that his schedule will include some up-country trips, perhaps a spot of falconry in the desert or some camping miles away from telephones or possible communication with the office in London. There could be many such occasions in the Secretary of State's life. He could be on holiday, swimming in the sea out of range of a telephone, or he could be ill or incapacitated.

§ Mr. Maclennan
I wish that I could believe that the hon. Member for Thanet, South (Mr. Aitken) has discovered such a flaw, but it is a canon of statutory interpretation that use of the phrase "Secretary of State" does not confine itself to any particular Secretary of State. If, as he suggests, the Secretary of State for the Home Department is unavailable, the Bill empowers the Secretary of State for the Environment or the Secretary of State for Scotland, or another, to fulfil the task.

10.45 pm

§ Mr. Aitken
I know that that has been past practice. It is well known that, when seeking warrants, the security services have often called upon what might be called the weakest link in the chain—the Minister of Agriculture, Fisheries and Food, or the Secretary of State with responsibility for drains, as being the last man in Whitehall on a Friday afternoon, because he does not have a clue about what goes on and can be counted on briskly to sign the authorisation.

§ Mr. Allason
I cannot believe that other Secretaries of State are authorised to sign warrants. In the past, and under the Interception of Communications Act 1985, it has been the practice to identify the Secretary of State for the Home Department. It will be improper if other Secretaries of State, who are not aware of the background, consider the detailed submissions that must be made to obtain a warrant.

§ Mr. Aitken
No doubt the Minister will elucidate that point, but the Bill appears to give no scope for any person other than the Secretary of State for the Home Department, to whom the Bill refers throughout as the Home Secretary, and who is responsible for oversight and monitoring supervision, to sign warrants.
I am baffled by the notion that the Secretary of State for the Home Department will not, in any circumstances, take a day off. If that is so—and clause 3(3) reads that way—it reveals a defect in the arrangements. Clearly, although 263 the Home Secretary has summoned up for himself amazing powers of oversight and monitoring, he cannot be everlastingly omnipresent and eternally vigilant so as to authorise warrants.
I suggest that an amendment must be made to allow Secretaries of State—in the plural—to authorise warrants. It would be preferable if the judiciary, who are plural, did so. I hope that the point made by the hon. Member for Caithness and Sutherland (Mr. Maclennan) concerning the canon of interpretation is not valid. As I read the Bill, it contains a defect, and the provision for issuing warrants will have to be amended.

§ Mr. Menzies Campbell (Fife, North-East)
I wish to speak briefly in support of amendments Nos. 56, 58 and 59, which were eloquently and persuasively spoken to by the hon. Member for Aldridge-Brownhills (Mr. Shepherd). However, I do so with reservations, because amendment No. 58 refers to an order of a Judge of the High Court", which I interpret to mean an English High Court judge.
We have within the United Kingdom one other separate legal jurisdiction. In circumstances in which an application relating to Scotland is made by the Solicitor-General—leaving aside the question of whether or not it should be the Solicitor-General for Scotland—it is only right and proper that it should be made to a judge within the Scottish jurisdiction; whether of the Court of Session or of the High Court of Justiciary is something we need not debate this evening. That can easily be corrected at a later stage in the Bill's progress.
We are concerned with a matter of principle. Where the innovation of one's personal rights, whether in respect of liberty of property, is to be justified by the issuing of warrants, it is only right and proper that the warrant by which such enervation takes place should be issued by a source that can have no interest in the consequential outcome. Judges, for all their faults, have long been more effective guardians of the freedom of United Kingdom citizens. It was not a Secretary of State who said: Be you ever so high the law is above you. Had we had to rely on Secretaries of State to protect our personal liberties, I suspect that those personal liberties would have been in a far less effective and vibrant condition than they are today.

§ Mr. Buchan
I believe that the interpretation of the hon. Member for Caithness and Sutherland (Mr. Maclennan) was right: normally "the Secretary of State" means "any Secretary of State", which is even more appalling. The element of secrecy surrounding the Bill, and the fact that there is no scrutiny Committee with any public responsibility or accountability, but that all is left in the hands of the Home Secretary—who may be missing—and the Prime Minister, mean that if the one person who is being reported to in any detail on the workings of the Security Service is missing, an entirely unknown Secretary of State, for example, the Minister of Agriculture, may sign the warrant.

§ Mr. Aitken
I am fascinated by all the constitutional experts who are popping up on the Opposition Benches. Perhaps the hon. Gentleman will clarify the matter a little further. If the words "the Secretary of State" can mean "any Secretary of State", does that apply throughout the 264 Bill? Can the director-general be appointed by any Secretary of State, or the monitoring be done by any Secretary of State? Are all Secretaries of State transferable?

§ Mr. Buchan
I think that legally the short answer is yes. The practical, empirical answer is of course no, but I think that that is the case unless it is written into the appropriate clause that the Secretary of State referred to is the Home Secretary or the Secretary of State for Scotland. That is very common: agriculture Bills tend to refer to the Minister of Agriculture and the Secretary of State for Scotland. If that definition is not given, what I have described could happen.
Whether it happens or not, however, the position remains serious. We said yesterday that the whole apparatus of grim secrecy will be left in the hands of only one accountable person in Parliament—the Home Secretary, reporting to the Prime Minister. The director-general, and his position in relation to the Home Secretary, makes the thing even more private, even more secret and even more dangerous.
It would be better if the wording were clarified, but of course the Government do not want to clarify it now. Many defects have been pointed out in the past two days, but the Government have dodged them all. Earlier this evening we saw an astonishing phenomenon whereby Conservative Members accepted the main burden of the argument put forward in the form of a statement by the Home Secretary, but there was no offer to bring it into legislation. They are afraid of the tiniest amendment because they do not want to come back to the Bill on Report, when more thought could be given to it.

§ Mr. Cryer
What my hon. Friend has said suggests that any Secretary of State can ring up an official and say, "I expressly authorise a warrant." The official jots it down and then simply says, "The Minister of Agriculture happened to ring this morning and issued a warrant, which I endorse under my hand", and that fulfils the purpose of subsection (3)(b).

§ Mr. Buchan
In some circumstances I think that that could be the legislative and technical position, but we shall find out shortly from the Dispatch Box. In practical terms it would not be the case, because there would already be a working arrangement between the Secretary of State, that curious group of people MI5, and the various ancillaries.
Of course, it would be better if the matter were in the hands of a judge—if the judiciary in one form or another had given its imprimatur. But do not let us be too confident about that either. It was a head under a wig that made that infamous declaration in the Ponting case that the interests of the state were synonymous with those of the Government of the day. Incidentally, it is a terrible indictment of parliamentary democracy that we must lean on judges rather than on this place to try to save our democracy and freedom, and I understand why hon. Members say that accountability should be secured by a Committee of the House. It was, for example, a judge—the Lord Advocate-who signed the warrant to allow the invasion of the Scottish BBC, over the Zircon case—another entirely unnecessary and dangerous invasion of our freedoms.

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§ Mr. Menzies Campbell
Perhaps the hon. Gentleman will recall that the Lord Advocate was a Minister, but it was a Scottish judge who regarded the first warrant as incompetent and reduced it.

§ Mr. Buchan
I withdraw what I said. The hon. and learned Gentleman is absolutely right. The judge rejected it as being a portmanteau warrant and therefore improper.
I believe that the amendments put forward by two Conservative Members and supported by members of the SDP—or whatever strange name they call themselves nowadays—should be supported. It takes a lot for me to say that. The Government knew they were wrong throughout the debates yesterday and today. It was clear they knew they were wrong. They did not seem prepared to make the slightest amendment. Have some courage. Say yes.

§ Mr. Harry Cohen (Leyton)
I shall be brief as I do not wish to delay the Committee too much longer. I raised this issue on Second Reading, but the Minister did not respond. I want to give him a chance to do so because it raises serious implications. As we are discussing warrants, there is an opportunity legitimately to raise this matter. Under this legislation there will be warrants authorising breaking and entering and burglary, allegedly in the interests of the state. Under the Bill, burglary would become legal. In those circumstances, what I described on Second Reading as the "Hilda Murrell" implications arise. We should have some answers from the Minister about those implications.
What if the home-owner comes home and finds the warranted burglar, for want of a better word—it might not even be an MI5 man in these days of privatisation, as the job might have been contracted out to somebody—in his or her home and resists? That is not a hypothetical question. When people find burglars in their home they tend to resist. Many people put up a fight in defence of their property. What orders will the warranted burglar or MIS man have in those circumstances? Can the Minister tell us? What will the MIS man say in those circumstances? It is an important point and it has further implications. Ordinary burglars who are not MI5 men might say, if caught in the act, "I am doing it for MI5." What is the situation?
What if the warranted burglar assaults the homeowner? Will he be subject to prosecution? Will the police have a role, or will they be told that they have to cover up for MI5 because it is secret and in the national interest? If the home-owner is injured, will he be eligible to claim compensation? In general, if home-owners are hurt they can claim from the Criminal Injuries Compensation Board. How will a home-owner go about seeking compensation in these circumstances? What if the home-owner assaults the warranted intruder? Will the home-owner then be prosecuted? Will he be punished or will he be left not knowing what is going on, perhaps waiting in fear for some sort of revenge from the burglar because he got the best of the issue?
What will happen in such cases? The ensuing struggle might result in murder. What happens if the warranted burglar—the MI5 man—murders the home-owner? Will the matter ever come to court? Will it ever come out into the open? What will happen in those circumstances? 266 Conversely, what happens if the home-owner murders the MI5 man? Will he be quietly bumped off or will he be taken to court?
The Government are making a new law with all those implications. They are not hypothetical questions. What is the position in law? The Government should tell us.

§ 11 pm

§ Mr. John Patten
What an interesting debate this has been. It started quietly when my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) opened the batting for himself and his hon. Friend the Member for Thanet, South (Mr. Aitken). I appreciate their concern for democracy and for the individual, but they can be met in a number of different ways and in the end one has to judge which is the best.
First, let me deal with judicial intervention in the warrant-making process, which is where my hon. Friend the Member for Aldridge-Brownhills began. Then I shall deal with the interesting and important points raised by the hon. Members for Bradford, South (Mr. Cryer) and for Caithness and Sutherland (Mr. Maclennan) and my hon. Friend the Member for Thanet, South on the meaning of the words "Secretary of State" in the authorisation of warrants. Last but not least, I shall deal with the point raised by the hon. Member for Leyton (Mr. Cohen), which he also made on Second reading at column 1174 of Hansard, to which I was unable to respond due to pressure of time.
The proposals on the role of the judiciary in the warrant-making process are not practicable in the context of Britain. It is always as well to begin with one's own country rather than some theoretical situation. The amendments in the name of my hon. Friend the Member for Aldridge-Brownhills propose a two-stage procedure involving approval by the Solicitor-General and a submission in writing to a High Court judge. Let us remember that in Britain the terrorist threat may be rather different from that in many other countries, as hon. Members on both sides of the House recognise. Matters may be extremely urgent. Terrorists do not wait for legal procedures to be completed before they act. We all recognise that.
Therefore, it is essential to be able to deal with applications for warrants as quickly as possible. If we adopted some scheme for judicial intervention such as that put forward by my hon. Friends, argument would be on the basis of written papers. The judge might have no previous understanding of or experience in Security Service issues. He will have to make a first judgment on issues that have never been before him. [HON. MEMBERS: "So will the Secretary of State."] But Secretaries of State will at least—it is an important at least—have had considerable briefing on the Security Service and how ii: works. The judge will have had no previous experience in the consideration of Security Service work, or knowledge of the policy or background to the work. It is then up to the learned judge, according to my hon. Friends' amendment, to authorise individuals to obtain information and to do anything listed in subsection (3) of amendment No. 59. Moreover, the judge becomes involved in operational issues. I do not know whether that is my hon. Friend's design. He may set such terms and conditions as he considers advisable in the public interest.
267 What is the director-general to do if he finds that the warrant has allowed an operation to take place in theory but that it has been frustrated in practice because of the way in which judicial intervention has worked, because of pre-conditions laid down by the learned judge, or because of the value judgments made by the judge that some members of the service might have been placed at considerable personal risk? Those are important considerations.

§ Mr. Richard Shepherd
I am charmed by my hon. Friend's hypotheses, but surely that is all that they can be. He has not produced any evidence to suggest that his hypotheses have any bearing in fact. For some time now, some of us have contended that our proposals are based on the statutory provisions of a country that shares our concepts of the rule of law, parliamentary democracy and ministerial responsibility and a judicial system not unlike our own. The Canadians have not had the hypothetical difficulties that my hon. Friend mentioned. The Canadians have to deal with terrorism too. They have had to deal with separatists—although the terrorist problem may not have been of the same dimension as ours—and they are part of the international community. An Air India aircraft originating from Canada was lost through terrorist activity.
We are trying to bring to the Minister's attention the fact that there is substantial evidence to show that the Canadian system works. He may go off on a detour about hypotheses and say that people in this country are too foolish and that our situation is so special that such matters cannot be understood. The Home Secretary said that cloth that is woven anywhere other than in Whitehall is not relevant.

§ Mr. Patten
I make no apology for speaking hypothetically, any more than my hon. Friend has. We are both speaking hypothetically about the possible adoption by this Government, or some other, of the proposals in amendment No. 56.

§ Mr. Menzies Campbell
rose—

§ Mr. Patten
May I address myself first to my hon. Friend the Member for Aldridge-Brownhills before I give way? We have to deal with what may happen, so we are both speaking hypothetically. I had not, especially, wanted to discuss the Canadian system because I intend my remarks to be informed by the British experience. However, unfortunately from our point of view, it seems that in Canada—and I have looked into this too—it can take up to two days to achieve a judicial warrant. On some occasions, two days would not matter, but on others, when there was a serious terrorist threat, two days would matter.

§ Mr. Menzies Campbell
I apologise if, through an excess of zeal, I appeared to be interrupting the Minister when he was answering another hon. Member.
Will the Minister leave aside the hypotheses for a moment and address himself to the principle, about which hon. Members feel most strongly? Does he accept that, as the security services are an arm of the Executive, it is only right and proper, if they are to be authorised to commit what would otherwise be illegal acts, that the authorisation should come from the judiciary and not from the Executive?

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§ Mr. Patten
I do not accept that. In the context of the threats that we face in this country and the long-established roles of the judiciary and the Executive, to which the hon. and learned Gentleman, with his considerable experience in the law-albeit north of the border—has referred—[HON. MEMBERS: "There is nothing wrong with that."] I agree that there is nothing wrong with that. I did not realise that I had touched a raw nerve. The judiciary should not become involved in the day-to-day operational decisions of the Security Service. When one considers the threats that this country faces, one realises that to take decisions about warrants requires an appreciation of the overall objectives of the Security Service and the considerations relating to the well-being and security of this country.
The judiciary could not reasonably be expected to assume such major operational responsibilities. It has been the theme of my right hon. Friend the Home Secretary and myself that such responsibilities are, properly, for Ministers. The system that is proposed in the Bill, with the additional protections given by the tribunal and the commissioner, is, I would point out to the hon. and learned Member for Fife, North-East (Mr. Campbell), an effective way to protect the interests of the nation as a whole.
I shall now deal with the interesting point, which was raised by the hon. Member for Bradford, South and referred to by the hon. Member for Caithness and Sutherland and my hon. Friend the Member for Thanet, South, about the system for signing warrants.
Our present system is a very good one. My right hon. Friend the Secretary of State for the Home Department is assiduous in his duties. He is not normally unobtainable, and I can tell the House—as a matter of the free dissemination of information—that neither falconry nor camping will be part of my hon. Friend's programme during his forthcoming visit to Saudi Arabia.
All these points stem from the constitutional doctrine that any Secretary of State can carry out the functions conferred upon a Secretary of State. The hon. Member for Caithness and Sutherland put his finger on it; he was quite right. It is nevertheless fanciful to suggest that the appointment of the director-general or the oversight of the service will be carried out by anyone other than my right hon. Friend the Home Secretary.
My hon. Friend the Member for Thanet, South raised some important points, but I can confirm that the judgment of the hon. Member for Caithness and Sutherland was right. Let me explain what would happen in the process. If my right hon. Friend the Home Secretary is fully informed while he is away from the office of the reasons why a warrant should be granted, he can give a civil servant of grade 3 or above the authority to sign the warrant. He can do that by his own direct personal authority. But that signature remains valid only for two days and the warrant can be renewed only over the hand of my right hon. Friend the Secretary of State. Incidentally, I share the view of the hon. Member for Bradford, South, who said that he deplored the new description "grade 3". I rather liked the old phrase "under-secretary". Perhaps they will all be given numbers shortly.
I have described what will happen when my right hon. Friend the Home Secretary is available. It is quite clear that another Secretary of State could authorise a warrant under the Bill—the point raised by the hon. Member for 269 Paisley, South (Mr. Buchan)—but it is nonsense to suggest that a Secretary of State will be authorised to sign warrants without any background knowledge. It will not surprise the Committee to learn that my right hon. Friend the Secretary of State for Northern Ireland is closely involved in these matters, and my right hon. and learned Friend the Secretary of State for Scotland is also involved. I remind the House that the language used in the Bill is exactly the same as that used in the Interception of Communications Act 1985. There is no change.

§ Mr. Maclennan
May we clarify the procedure? Suppose that the Home Secretary is in Saudi Arabia—not indulging in falconry but nevertheless unavailable to receive the intelligence from the Security Service that a particular matter requires the issue of a warrant. The Security Service will then have to convey that information to another Secretary of State; perhaps the Secretary of State for the Environment will be the only one available. As I understand the clause, an official of above grade 3 at the Department of the Environment would have to issue the warrant in the absence of the Home Secretary. I do not regard that rather bizarre set of circumstances as entirely fanciful. It is perfectly clear that from time to time the Ministers who are in touch with these matters and aware of the background are simply not available.

§ Mr. Patten
The hon. Gentleman is not usually known in the House for his flights of fancy, although he is known for many other things. Before his lengthy intervention, which turned into a speech, I said that that it was the other Secretaries of State concerned with security issues—for example, my right hon. Friend the Secretary of State for Northern Ireland—who would properly have an interest in these matters from time to time.
I come to the points raised by the hon. Member for Leyton. Although I think that I can give him a clear assurance, if he does not mind I shall not refer to the case of Hilda Murrell because I am not aware of it, and in any event I should not wish to comment on a past case. However, I can give the hon. Gentleman a cast-iron assurance that only activities that are legal and properly authorised will be carried out by the service. All that a warrant can authorise is action in respect of a named property, and both the action and the name of the property must be on the warrant. In no circumstances can a warrant authorise any attack on or interference with a person—that is no part of the service's task. So if, in the purely hypothetical case that was put to me by the hon. Member for Leyton, the owner resisted, he or she would be in exactly the same position as anyone else if he or she reasonably believed that the person entering was an intruder acting unlawfully.
With that reassurance, I hope that the hon. Member for Leyton, other hon. Gentlemen and some of my hon. Friends will not seek to press their points in the Lobbies.

11.15 pm

§ Mr. Cryer
An amendment that was designed simply to ensure greater ministerial accountability has developed a little. From subsection 3(3) it now appears that any Secretary of State can authorise a warrant. The hon. Gentlemen who pointed that out were quite right because the particular Secretary of State is not defined. Moreover, any Secretary of State can not only authorise a warrant; he can authorise a warrant over the telephone to an official 270 above grade 3. The official then takes down a message, saying that the Secretary of State, or rather in this case the Minister of Agriculture, Fisheries and Food, authorises a warrant for entering an intervention store. Under paragraph 3(3)(b) the note by the official accompanies the issue of the warrant.
It may turn out that the Secretary of State did not make that authorisation, but that the official misheard what he said over the telephone. That sort of arrangement is permissible and authorised under the Bill. Therefore, under the Bill the Secretary of State does not have to write anything for a warrant to be issued—an official can simply take down a note.
The Minister said that issuing a warrant involves a Secretary of State who is concerned with security issues—

§ Mr. John Patten
It could.

§ Mr. Cryer
Yes, it could, but the Minister actually said "concerned with security issues". That would be in the ordinary run of the mill, but that is not what the Bill states. It states "the Secretary of State". Curiously, paragraph 3(3)(b) does not state "where a Secretary of State has expressly authorised its issue", it states where the Secretary of State has expressly authorised its issue". I suspect that those who drafted the Bill were not too sure about the position and drafted it in a general and sloppy way so that they could invoke anybody, if they so chose, without any criticism being directed at them.
I have used the example of the Minister of Agriculture, Fisheries and Food. If any hon. Member tables a question about the intervention stores in this country, the Minister of Agriculture, Fisheries and Food will not reveal where they are because it is a secret. Therefore, it could be legitimately argued that the Minister of Agriculture, Fisheries and Food is concerned with security issues because his Department has to hide all the locations of the cereal intervention stores. If somebody finds out that inside one of the intervention stores there are supposed to be cereals, but that instead it contains rotten apples, and. if the Minister of Agriculture, Fisheries and Food needs to find out that information—

§ The Second Deputy Chairman of Ways and Means (Miss Betty Boothroyd)
Order. The hon. Gentleman is very amusing, but he is straying from the amendment.

§ Mr. Cryer
My amendment No. 95 in fact requires a junior Minister to issue a warrant, and would exclude an official having anything to do with it.

The Second Deputy Chairman
The hon. Gentleman must keep to the point of the issue of the warrant.

§ Mr. Cryer
I am absolutely with it. The point I am making is that the reasons that could be advanced for the issue of a warrant from a Department, which seem on the face of it highly unlikely, are actually a possibility in reality, because of the curious way in which we keep those intervention boards secret. Therefore, the Minister might argue that it is necessary to obtain a warrant and evidence that the secret of an intervention store is coming out.

§ Mr. Buchan
Can I draw my hon. Friend's attention to clause 1(3), because we have been mystified up to now—

The Second Deputy Chairman
Order. The Committee has disposed of clause 1

271

§ Mr. Buchan
It is completely relevant to this.

The Second Deputy Chairman
It may be relevant, but the Committee has dealt with clause 1, with respect, and I must remind the hon. Gentleman—

§ Mr. Buchan
Can I—

The Second Deputy Chairman
Order. I want to be reasonable about this, but the Committee has dealt with clause 1—that has gone.

§ Mr. Buchan
It is precisely because we have dealt with it that it becomes relevant to this section. Clause 1(3) refers to problems posed by the actions or intentions of persons outside the British Islands, which is precisely the point that my hon. Friend is making about intervention stocks in this country, because they could have come from Belgium, Holland or France and they could be on the fiddle.

The Second Deputy Chairman
Order. The amendment deals strictly with the warrant and not with any intervention stores. The hon. Member for Bradford, South (Mr. Cryer) had come back to the point of the amendment, and perhaps he would now pursue that.

§ Mr. Cryer
My hon. Friend is saying that the issue of a warrant could be justified under clause 1(3), and it is the issue of the warrant about which we are concerned. I entirely accept, Miss Boothroyd, your injunction to keep to the point of the warrant, but the issue of the warrant is so vague. If it was an issue for a warrant to pop on a box of chocolates to say that it was approved by the Ministry of Agriculture, Fisheries and Food or whatever, we would not be too concerned, but we are talking about a warrant that authorises burglary. As my hon. Friend the Member for Leyton (Mr. Cohen) said, it is a warrant that authorises burglary with the possible consequence of people being injured. We believe that Hilda Murrell was killed by the security services. She was frightened, they were probably frightened, too, and something went terribly awry and she finished up dead.
We are talking about something that is extremely important, yet here we have a set of circumstances laid down in this Bill. At the end of the day, whatever the Minister says, it will not be a question of what is contained in Hansard. The words of the Bill will define the procedure to be undertaken. We are saying that this procedure is sloppy and that it has no adequate definition. If the Minister says that it has been done in the interception of communications legislation, I was not in the House at that time—no doubt missed greatly for the scrutiny that I can apply. This is new legislation on something which this House has never done before—the right physically to enter other people's property and to carry out what in every other case would be a serious criminal offence, with a possible penalty of several years' imprisonment.
I believe that the Minister should reconsider this, because it is a serious set of circumstances when any Secretary of State can authorise a warrant. It is no good the Minister saying that, of course, in practice it would not be any other Minister;, the fact is that under this legislation it apparently can be any other Secretary of State. The Minister is, in effect, saying that we are giving powers to every Secretary of State of every Department to issue warrants. That Minister will not be there all the time. We could have more nefarious, unscrupulous or ignorant 272 Ministers— [HON. MEMBERS: "Or Labour Ministers."] Labour will get rid of this licence for Ministers to authorise burglary and bugging. It is outrageous.
The Bill does not depend on assurances from the Minister that its remit will be confined. Once the Bill is passed the power is handed over to be applied by any Minister who happens to be appointed at the time. Although the Minister of State may give us genuine, fond assurances that that power will be concerned for paltry accountability, and all the other platitudes that Ministers tumble out from time to time, we are worried about the law that is laid down in the Bill.
As we understand it, any Secretary of State can authorise a warrant for burglary under the Bill. Consequently, a Secretary of State does not have to write anything to issue a warrant. He simply must say to someone, either directly, over the telephone or by other means, "Yes, I authorise you to issue a warrant." It could be that the Secretary of State's intention is distorted by a bleep in the electronic communications. The official may write down that the warrant is issued, whereas the Secretary of State said "The warrant is not issued." The official, in good faith, writes down that that warrant is authorised and it is then issued. It is absolutely incredible that such legislation is being pursued in the House.
Do the Government have the same standards when issuing regulations for social security benefits? No, they do not. When the Government are dealing with social security benefit legislation they lay down page after page of careful drafting. There are regulations on every detail and schedules to ensure that the poor and wretched do not get a penny more than they are authorised to receive.
If the Minister is doing something serious that authorises potentially criminal activity, he should, at least, be as careful in the primary legislation, as the Government are in other legislation on social security and other activities. That is not the case with the Bill. The Government are guilty of shoddiness because, once the Bill is passed, it will not come back to Parliament. It is true that there will be a parliamentary report from the commissioner, but there are no guarantees that it will be debated.
Behind closed doors there will be lots of telephoning and mistaken messages will be recorded. All that will be covered up. Officials may be told that MAFF authorised a warrant, but that it did not mean to and that it wants that warrant to be returned. The reply to the Ministry may well be, "Sorry, we have done the burglary." The outcome will be "Hard lines. It is just one of those things."
Nothing will be brought back to Parliament. That is not good enough and the Minister should be decent enough to issue a statement tonight to the effect that the Government will have another look at this matter and clarify the Bill to ensure that there is no mistake.
Given that important and potentially dangerous powers are to be authorised, we should, at least, have some sort of clarity in the legislation. If the Minister is unable to obtain such clarification from the Home Department, he should go to the Department of Social Security, because it has had lots of practice at issuing clear legislation to stop the poorest in the land getting an extra penny. The Minister should bring such scrutiny to bear on the Bill.

§ Mr. Maclennan
As the debate has progressed, the case for the judicial issue of the warrants has become stronger.
273 My hon. and learned Friend the Member for Fife, North-East (Mr. Campbell) asked the Minister whether he accepted the principle of judicial warrants. The Minister said that he did not because he believed that the person who issued the warrant should have some understanding of the background to the Security Service and the matters in hand. It has become clear from the debate that the Bill does not provide for that. It is clear that any Secretary of State may issue a warrant, not just the Secretary of State with responsibility for the Security Service. Worse, in an emergency the Secretary of State in question may not even be consulted. If the service judges that there is an emergency which requires the issue of a warrant, the Bill entitles it to shop around for a Secretary of State who is favourable to issuing one. It can then be issued by an under-secretary. That is not fanciful—it is farcical. It is an unacceptable intrusion on fundamental rights and freedoms, and the Bill entitles the Security Service to make that intrusion.
11.30 pm
The emergency provisions in clause 3(3), which amendment No. 59 seeks to tackle more satisfactorily, are not acceptable. The implication that a court cannot move with the rapidity of a Minister is not sustainable either. The courts are accustomed to keeping duty judges sitting for just such eventualities, and it is perfectly possible to ensure that duty judges—High Court judges, or judges of equivalent status in Scotland—are on hand at all times. It would be easier to do that than to ensure that a Minister of the appropriate level was always on hand. In the nature of things, Secretaries of State are called to perform many duties, and it is highly improbable that there will always be a Minister familiar with the workings of the Security Service at this level when one is needed.
I hope that the Minister will eschew his position to the proposals on the grounds of practicality. Not only is it practical to operate a system of judicial warrants in this country, but such a system has been successfully operated in Canada and no one has ever suggested that it put the Canadian security service at risk or rendered its operations less effective.

§ Ms. Abbott
Clause 3 is subtitled "Warrants". It should be titled, in the immortal words of Peter Wright, "Bugging and Burgling." It is about the conditions under which the Security Service can break the law. It is because it is about the power and capacity of the Security Service to break the law and intervene in the lives of ordinary people that I support the amendments.
I listened with great attention to the Minister's explanation of why the amendments should not be accepted. It is always a pleasure to hear him lecture us on the facts of political life with his usual confidence, verve, elan and panache, but I suggest in all timidity that he did not quite meet the case. The Minister made three points with which my hon. Friends and I might differ. He accused the hon. Member for Aldridge-Brownhills (Mr. Shepherd) of making a hypothetical case, but the case was based on Canadian experience and was thus grounded in fact. It was the Minister's case that was hypothetical. He claimed that the problem with the Canadian system was that it might take up to two days. We do not accept that. We are quite sure that in urgent cases the judiciary could move more quickly than that. There are plenty of examples of judges being whipped from their beds to issue warrants.
274 The Minister claimed that the considered, careful and precise drafting of the amendment was not necessary because there would be a tribunal and a commissioner. The Minister has missed the point. The tribunal and the commissioner can come into play only after the bugging and burglary have taken place. The amendment seeks to make sure that before any elaborate illegality takes place the matter has gone through the due judicial process. Given the power and the capacity of the security services to break the law, intervention by the judiciary is not only necessary but appropriate. Even at this late stage, I hope that the Minister can be prevailed upon to change his opinion of the reasonable amendments that have been tabled.

§ Mr. Aitken
I intervene to press my hon. Friend the Minister for a more convincing explanation of the procedure on the warrants as it affects the Secretary of State. I maintained in an earlier intervention that clause 3(3) is clearly directed at the Secretary of State, meaning the Home Secretary only. After a great deal of scribbling and passing of notes backwards and forwards between the Minister and his advisers and a little help from the hon. Member for Caithness and Sutherland (Mr. Maclennan) who is so learned in the law, it emerged that "Secretary of State" can mean any Secretary of State. So be it: we must respect the views of constitutional and legal experts.
If that is the case, why on earth has the drafter of the Bill put in paragraph (b)? There is now an elaborate procedure for urgent cases by which grade 3 civil servants can have telephone instructions and can get two-day endorsements. Why is paragraph (b) necessary if any old Secretary of State can sign the warrant? My hon. Friend's position does not make too much sense if the Bill was drafted as correctly and as perfectly as he would have us believe. If "Secretary of State" means any Secretary of State, the procedure is simple and a warrant can be signed in many places in Whitehall. If that is the case we do not need the complex machinery of endorsements lasting two days made by grade 3 officials. Either that is the case or, as I suspected all along, the clause, like many others in the Bill, has been badly drafted. I press my hon. Friend for a better explanation than the one that he has given.

§ Mr. John Patten
The explanation that I gave earlier to my hon. Friend the Member for Thanet, South (Mr. Aitken) will be in Hansard for him to read. Tomorrow, when he gets the chance to reflect upon it, he will recognise that the system provides for complete overall supervision by my right hon. Friend the Secretary of State for the Home Department. The Bill provides that in an emergency another Secretary of State, normally as I explained the Secretary of State for Northern Ireland or the Secretary of State for Scotland, would have a hand in this. In addition, an under-secretary of state or deputy under-secretary of state who might take instructions by telephone about these issues on the personal authorisation of my right hon. Friend the Secretary of State for the Home Department, would be a Home Department official.

§ Mr. Aitken
My hon. Friend cannot be allowed to get away with this so easily. Perhaps I could use a cricketing analogy. We have heard about a wicket keeper, a deputy wicket keeper and a long stop. We have never heard of a Bill in which 11 long stops are easily obtainable. Not only 275 can the warrants be signed by all Secretaries of State, but by many civil servants. Will my hon. Friend accept that this should be tidied up in another place?

§ Mr. Allason
The Minister has made the extraordinary claim that any Secretary of State can sign one of these warrants. In the past these warrants have been signed, for example, in Scotland by the Secretary of State for Scotland and in Northern Ireland by the Secretary of State for Northern Ireland. The procedure is detailed in the interception of communications legislation, on which this provision is clearly based. But the idea that in an emergency another Secretary of State could examine the detailed submissions that must be made before a warrant is granted is absolutely bizarre and I hope my hon. Friend will take this opportunity to correct himself.

§ Ms. Abbott
The Minister said that there could not be judicial intervention in the signing of warrants because the judiciary would not have the expertise and briefing available to the Home Secretary. We are now being told that any Secretary of State—be he responsible for taxi cabs, agriculture and fisheries or whatever—will do. The hon. Gentleman must be aware that that contradicts his earlier statement that only the Home Secretary or a Minister in the Home Office with expertise could perform this task.

§ Mr. Andrew F. Bennett
I am surprised that the debate on this issue has gone on for so long without the Minister really answering the point that has been adduced. I understand this to be simply a drafting matter. Whereas, in the past, in legislation specific Ministers were named, a point came when the Prime Minister wished to reallocate responsibilities and problems arose. So it has become a convention in recent legislation to refer to the Secretary of State and for the duties of a particular Secretary of State to be authorised from time to time by the Prime Minister. It seems that this legislation is simply following that convention. The Minister might have told us that at a much earlier stage.

§ Mr. Tony Banks
Having been absent from the Committee for only a short while this evening, I return to find the Mad Hatter's tea party in progress. Will the Minister explain whether there are any parallels in legislation that would explain the situation that is giving rise to so much concern in the Committee?

§ Mr. Maclennan
The mystery of the Minister's reluctance to answer the questions that have been put to him can be explained by recognising that he is endeavouring to retain the absolutely unfettered freedom of the Security Service to obtain warrants and to be in no way trammelled by the non-availability of a Minister.
We recognise that urgency is an important factor, but the Minister cannot at the same time argue for urgency and for experts being available. Ministers with knowledge and background will not always be available. The Security Service will have to seek warrants from time to time without being able to adduce arguments with the support of a Minister with such expertise. The Minister has, by his reluctance to address this point, shot down his earlier argument that this had to be done by people with expertise and could not be done by a judge.

276

§ Mr. Aitken
I have a final suggestion, it having now been revealed that a complex safeguarding of civil rights procedure is not involved in the issuing of warrants. Indeed, warrants can be instantly available. In this building there is an efficient organisation which, among other things, issues rail warrants. It is called the Fees Office. Would it not be simpler to put the Fees Office in charge of issuing these warrants on behalf of the Security Service, thereby solving the problem?

§ Question put,That the amendment be made:

§ The Committee divided: Ayes 50, Noes 180.

277

Division No. 36]	[11.44 pm
AYES
Abbott, Ms Diane	Livsey, Richard
Aitken, Jonathan	McAvoy, Thomas
Alton, David	Macdonald, Calum A.
Ashdown, Rt Hon Paddy	McFall, John
Banks, Tony (Newham NW)	McKay, Allen (Barnsley West)
Barnes, Harry (Derbyshire NE)	McTaggart, Bob
Beith, A. J.	Mahon, Mrs Alice
Bennett, A. F. (D'nt'n & Ft'dish)	Martin, Michael J. (Springburn)
Boateng, Paul	Martlew, Eric
Bradley, Keith	Michie, Mrs Ray (Arg'l & Bute)
Bruce, Malcolm (Gordon)	Moonie, Dr Lewis
Buchan, Norman	Morley, Elliott
Buckley, George J.	Nellist, Dave
Cohen, Harry	Shepherd, Richard (Aldridge)
Cryer, Bob	Skinner, Dennis
Davis, Terry (B'ham Hodge H'I)	Spearing, Nigel
Douglas, Dick	Steel, Rt Hon David
Dunnachie, Jimmy	Strang, Gavin
Ewing, Mrs Margaret (Moray)	Taylor, Matthew (Truro)
Fyfe, Maria	Welsh, Andrew (Angus E)
Gordon, Mildred	Williams, Alan W. (Carm'then)
Hardy, Peter	Winnick, David
Hughes, John (Coventry NE)	Wray, Jimmy
Hughes, Simon (Southwark)
Kennedy, Charles	Tellers for the Ayes:
Kirkwood, Archy	Mr. Robert Maclennan and
Leadbitter, Ted	Mr. Menzies Campbell.

NOES
Allason, Rupert	Fishburn, John Dudley
Arbuthnot, James	Fookes, Dame Janet
Beggs, Roy	Forman, Nigel
Boswell, Tim	Forth, Eric
Bowden, Gerald (Dulwich)	Franks, Cecil
Bowis, John	Freeman, Roger
Brandon-Bravo, Martin	French, Douglas
Brown, Michael (Brigg & Cl't's)	Fry, Peter
Burns, Simon	Gale, Roger
Butcher, John	Garel-Jones, Tristan
Butler, Chris	Gill, Christopher
Butterfill, John	Goodhart, Sir Philip
Carlisle, Kenneth (Lincoln)	Goodlad, Alastair
Carrington, Matthew	Gorman, Mrs Teresa
Cash, William	Gow, Ian
Chapman, Sydney	Greenway, John (Ryedale)
Chope, Christopher	Gregory, Conal
Churchill, Mr	Griffiths, Peter (Portsmouth N)
Coombs, Anthony (Wyre F'rest)	Grist, Ian
Coombs, Simon (Swindon)	Gummer, Rt Hon John Selwyn
Cope, Rt Hon John	Hamilton, Hon Archie (Epsom)
Couchman, James	Hanley, Jeremy
Cran, James	Hargreaves, A. (B'ham H'll Gr')
Currie, Mrs Edwina	Hargreaves, Ken (Hyndburn)
Davies, Q. (Stamf'd & Spald'g)	Harris, David
Davis, David (Boothferry)	Hayes, Jerry
Devlin, Tim	Hayhoe, Rt Hon Sir Barney
Dicks, Terry	Hayward, Robert
Dorrell, Stephen	Heathcoat-Amory, David
Douglas-Hamilton, Lord James	Heddle, John
Dover, Den	Hicks, Mrs Maureen (Wolv' NE)
Durant, Tony	Hill, James
Evennett, David	Hind, Kenneth
Favell, Tony	Holt, Richard
Fenner, Dame Peggy	Howard, Michael

277

Howarth, Alan (Strat'd-on-A)	Raffan, Keith
Howarth, G. (Cannock & B'wd)	Redwood, John
Hughes, Robert G. (Harrow W)	Riddick, Graham
Hunt, David (Wirral W)	Ridley, Rt Hon Nicholas
Hunt, John (Ravensbourne)	Rifkind, Rt Hon Malcolm
Hunter, Andrew	Roberts, Wyn (Conwy)
Hurd, Rt Hon Douglas	Roe, Mrs Marion
Jack, Michael	Ross, William (Londonderry E)
Jackson, Robert	Ryder, Richard
Johnson Smith, Sir Geoffrey	Sackville, Hon Tom
Jones, Robert B (Herts W)	Sayeed, Jonathan
Kellett-Bowman, Dame Elaine	Shaw, David (Dover)
King, Roger (B'ham N'thfield)	Shaw, Sir Michael (Scarb')
King, Rt Hon Tom (Bridgwater)	Shephard, Mrs G. (Norfolk SW)
Knapman, Roger	Shepherd, Colin (Hereford)
Knight, Greg (Derby North)	Smith, Tim (Beaconsfield)
Lang, Ian	Speed, Keith
Latham, Michael	Speller, Tony
Lee, John (Pendle)	Spicer, Michael (S Worcs)
Lennox-Boyd, Hon Mark	Squire, Robin
Lightbown, David	Stanbrook, Ivor
Lilley, Peter	Stern, Michael
Lloyd, Peter (Fareham)	Stevens, Lewis
Lord, Michael	Stewart, Andy (Sherwood)
Lyell, Sir Nicholas	Stradling Thomas, Sir John
Macfarlane, Sir Neil	Sumberg, David
Maclean, David	Summerson, Hugo
McLoughlin, Patrick	Taylor, Ian (Esher)
Malins, Humfrey	Tebbit, Rt Hon Norman
Mans, Keith	Thompson, D. (Calder Valley)
Marland, Paul	Thompson, Patrick (Norwich N)
Martin, David (Portsmouth S)	Thurnham, Peter
Meyer, Sir Anthony	Townend, John (Bridlington)
Mills, Iain	Tracey, Richard
Mitchell, Andrew (Gedling)	Tredinnick, David
Mitchell, Sir David	Trippier, David
Monro, Sir Hector	Trotter, Neville
Morris, M (N'hampton S)	Twinn, Dr Ian
Moss, Malcolm	Waddington, Rt Hon David
Neale, Gerrard	Walker, Bill (T'side North)
Nelson, Anthony	Wardle, Charles (Bexhill)
Neubert, Michael	Warren, Kenneth
Nicholls, Patrick	Watts, John
Nicholson, David (Taunton)	Wells, Bowen
Nicholson, Emma (Devon West)	Wheeler, John
Norris, Steve	Whitney, Ray
Onslow, Rt Hon Cranley	Widdecombe, Ann
Oppenheim, Phillip	Wilkinson, John
Page, Richard	Wilshire, David
Paice, James	Winterton, Mrs Ann
Patten, John (Oxford W)	Winterton, Nicholas
Pawsey, James	Wood, Timothy
Peacock, Mrs Elizabeth	Yeo, Tim
Porter, David (Waveney)
Portillo, Michael	Tellers for the Noes:
Powell, William (Corby)	Mr. John M. Taylor and
Price, Sir David	Mr. Michael Fallon.

§ Question accordingly negatived.

§ Mr. Andrew F. Bennett
I beg to move amendment No.84, in page 3, line 4, at end add— '(8) Where any individual reports to the police any event which appear to be criminal, and where the police are satisfied prima facie evidence of a crime exists, they shall inform the individual if no crime has been committed because the events were permitted under a warrant issued under this act by the Secretary of State; and shall inform the individual of his rights to have the matter investigated by a tribunal as specified in Schedule 1 to this Act.' When speaking to the last group of amendments, my hon. Friend the Member for Leyton (Mr. Cohen) referred to a situation that I want the Minister to address—[Interruption.]

The Second Deputy Chairman
Order. I shall be grateful if right hon. and hon. Members leaving the Chamber will do so quietly, so that the hon. Member for Denton and Reddish (Mr. Bennett) can be heard.

278

§ Mr. Bennett
In the previous debate, my hon. Friend the Member for Leyton referred to a problem that amendment No. 84 is designed to overcome, where something goes wrong with the activities of the Security Service. Clearly, the main purpose of warrants will be to undertake burglary or bugging, in such a way that the individual whose property is burgled or whose telephones are tapped will not know of it.
If such activities are successfully undertaken, the individual is unlikely to know of them and to be in a position to complain. However, if something goes wrong, the individual will be left in considerable doubt as to what has happened. The purpose of amendment No. 84 is to ensure that the individual is given a clear statement that what he believed to be a criminal offence was not criminal but something authorised by the Home Secretary—and that as a result, he has a right, under schedule 1 to the Act, to appeal to the tribunal for redress.—[Interruption.]

The Second Deputy Chairman
Order. It is very difficult for the hon. Member for Denton and Reddish to be heard. If right hon. and hon. Members at the Bar wish to continue their conversations, I shall appreciate it if they will do so on the other side of the swing doors, so that those of us who are involved in the Committee can hear the proceedings.

§ Mr. Bennett
I am grateful to you, Miss Boothroyd.
If a security operation goes wrong and the individual concerned discovers that his property has been burgled or bugged and makes a complaint to the police, they should be able quickly to establish that it was done under the Home Secretary's warrant. In those circumstances, the police should inform the individual accordingly. If a person returns to his property and discovers an intruder whom he then detains or arrests and hands over to the police, it will be most unsatisfactory if the police allow that intruder to go free without giving the victim an explanation and the information that the intruder is a member of the Security Service.
I hope that the Minister will make it clear that, where an individual discovers that his property has been burgled or bugged and complains, he will be informed of the warrant and of his right to complain to the tribunal.

§ Mr. John Patten
Sadly, the amendment would provide a ready means for anyone who suspected that the Security Service had discovered his or her activities to check, through the police, whether a property warrant existed in respect of any property in which he or she had an interest. I rather doubt that the hon. Gentleman meant that to be the effect of the amendment, but that would be its effect in practice. For example, a spy or terrorist would have a ready-made route to finding out as promptly as possible whether he was under surveillance. The Bill, however, contains a ready-made route for a citizen who feels aggrieved to go through a complaints mechanism. As with the Interception of Communications Act 1985, leaflets will be made widely available to anyone who wants them in such places as police stations, public libraries and citizens advice bureaux, making clear the avenues of complaint.
12 midnight
I do not think that the matter can be dealt with on a case-by case basis in the light of a particular warrant operation, as the amendment proposes. I appreciate the point about individual liberty with which the hon. 279 Gentleman is trying to deal, but whatever the purpose of the amendment its net effect would be to provide an open door for anyone engaged in illicit activity to damage the security of the state.

§ Mr. Buchan
The Government have said, "We quite agree that individual liberty will be expended, but it is important that we retain the provision." That is nonsense. There is no question of a spate of individuals setting in train the demolition, stealing or removal of business papers or other material from their own homes—in such a way that the police accept that a prima facie case has been established—to try to investigate whether they are being bugged by MI5. Some of us have suspected that in the past, but by no stretch of the imagination would we have created an apparent crime that would convince the police that prima facie evidence of a crime existed.
When civil liberties are weighed against a minor problem facing the Security Service, the House should always come down on the side of individual liberty. The Government are a disgrace to parliamentary democracy and the liberty of this country.

§ Mr. Tony Banks
The Minister always responds to perfectly reasonable suggestions by claiming that the amendment, if carried, would give aid and succour to a terrorist or spy. I can understand that: I do not particularly want to end up dead in my bed having been killed by a terrorist, and if I thought that the Bill would protect me from such a sad eventuality I should be a little more enthusiastic about it.
What concerns me about the amendment, which is perfectly reasonable, is how individuals who feel that they have suffered from criminal activity—because their houses have been broken into—know that they have grounds of complaint to the tribunal. Will the police officer be able to tell them, "Don't worry about it, Jimmy. It was not an ordinary burglar; it was someone who had managed to get a warrant from the Transport Office at the House of Commons"? It has been suggested that that might be the most convenient way of obtaining one.
I should like to know the mechanisms, just in case I happen to be on the receiving end of a burglary and happen to catch the individual. I get in touch with Forest Gate police station; the police come and take the individual away. When I go along to find out whether I can press charges, will the police then say, "There is nothing to worry about; it was done through a warrant"? If the individual has the right of redress through the tribunal, what information will be given that will enable him to lodge a complaint? If no such information is given, what is the point?

§ Mr. Andrew F. Bennett
Supposing someone detains someone in his property and takes him down to the police station, what do the police do? Do they just let that individual walk away and give no explanation at all, leaving one to assume that it is not incompetence on the part of the police but the fact that they know a warrant existed?
I am very disappointed with the Minister's reply because I did take the trouble in this amendment to make it clear that there had to be prime facie evidence that some criminal activity had actually occurred. As far as I can see, anybody who is likely to be involved in terrorist or other 280 activities who finds someone has broken into or bugged his property is going to know perfectly well that the Security Service was involved, or at least he will jump to that conclusion. What we are describing in this amendment is the protection for the individual whose civil liberties have actually been infringed, and wrongly infringed, so that they can have some clear evidence to take to the tribunal.
I also suggest to the Minister that there is a practical problem. There is a great deal of disquiet in this country at the moment that often the police do not take investigations in burglaries sufficiently seriously. Is the Minister suggesting that every time an individual that feels his property has been burgled and the police have not pursued it with sufficient diligence he should refer it to the security tribunal to try and find out whether it is merely that the police have not shown much enthusiasm for his complaint or whether no crime had been committed because a warrant had been issued?
Surely the Minister does not want to get thousands of cases being referred to the tribunal. He wants to make sure that those people who have a legitimate complaint have their cases investigated, and to avoid a huge number of complaints coming in. It does seem to me that there ought to be a clear process by which people can be told, if it has become obvious to them that their property is being interfered with, that it was done under the due process of a warrant.

§ Amendment negatived.

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

§ Mr. Tony Banks
I am not going to detain the Committee long. The point that I want to make is that this Committee seems to be inordinately relaxed about the way civil liberties are disappearing. There seems to be no real scrutiny of this clause or previous clauses. This is a Committee stage. If the Minister wants to reduce the whole thing to low farce, we should, by all means, continue in the way that we are going on.
I ask legitimate questions. I do not want to keep myself out of my own bed tonight. I am not finding it particularly enjoyable to be here, and I am sure that is true of right hon. and hon. Members. Those of us who are taking part in this Committee stage are here because we want to assure ourselves about certain rather disturbing aspects of this Bill. Up to now we have been gravely disappointed, and we shall go away far more worried about this Bill than we were when we arrived here for the Committee stage.
I ask that Ministers at least answer some of the questions directed specifically towards the clause stand part debate by me. I want to know how the procedure works. Is it unreasonable, even at eight minutes past midnight, to ask some specific questions in what is supposed to be the Committee stage of a Bill, when we can ask Ministers questions, and Ministers can respond? The rules of debate that apply to a Second Reading and other stages do not apply here. This is where we are supposed to be giving scrutiny to this Bill, and up to now we most certainly have not done that. We have been derelict in our duty, because the Minister has refused to treat this measure seriously.

§ Mr. John Patten
I have given a full and helpful explanation to the Committee, and I ask that the clause stand part of the Bill.

§ Question put and agreed to.

281

§ Clause 3 ordered to stand part of the Bill.