§
Lords amendment: No. 40, in page 31, line 43, leave out subsection (4) and insert—
("(4) A public authority is a relevant public authority for the purposes of this section—
(4A) An order under this section may amend Schedule (Relevant public authorities) by—1199
- (a) adding a public authority to Part I or II of that Schedule;
- (b) removing a public authority from that Schedule;
- (c) moving a public authority from one Part of that Schedule to the other;
- (d) making any change consequential on any change in the name of a public authority specified in that Schedule.
(4B) Without prejudice to section (Orders under s. 29 for Northern Ireland), the power to make an order under this section shall be exercisable by the Secretary of State.
(4C) The Secretary of State shall not make an order under subsection (4A) containing any provision for—unless a draft of the order has been laid before Parliament and approved by a resolution of each House.")
- (a) adding any public authority to Part I or II of that Schedule, or
- (b) moving any public authority from Part II to Part I of that Schedule,
§ Mr. Charles ClarkeI beg to move, That this House agrees with the Lords in the said amendment.
Mr. Deputy SpeakerWith this it will be convenient to discuss Lords amendments Nos. 41, 42, 130 and 142.
§ Mr. ClarkeI shall comment on the amendments briefly. The serious matter with which they deal was debated at length in Committee, on Report and in the other place. I was sympathetic to the view expressed in this House during our earlier discussions on the Bill: the public authorities empowered to authorise the use of directed surveillance and the use or conduct of covert sources should be set out in a schedule to the Bill. I believed that it was important for public debate that we had as much information as possible. A central record had never been drawn up or held of Departments and other public bodies that used those covert techniques, and it has taken us some time to devise a definitive list. The provision of such information is an important development in government in Britain.
I make no criticism of previous Governments, Conservative or Labour. However, the fact that we did not know properly about those matters is a serious reflection on the state of affairs. On behalf of my officials, I emphasise it has not been easy to establish the precise circumstances across government. They have done a good, professional job. However, as they would be the first to say, even now we may not yet understand everything that has taken place. The schedule that we are considering has changed considerably from the list that I circulated in Committee. When considering that list, the right hon. Member for Penrith and The Border (Mr. Maclean) entertained us with his comments on ice cream salespeople and various other issues of great substance. Since then, we have discovered that a greater number of public authorities than we had first thought use part II powers, and that a much greater number of public authorities use covert sources.
We are still learning about public authorities whose activities have not previously come to our attention. That learning process is likely to continue for some time in future. I have no doubt that it will be necessary to introduce orders that add further public authorities to the schedule as a result of case law developed from judgments on the definition of a public authority once the Human Rights Act 1998 comes into force in October. Any additions to the schedule or moves of authorities from part II to part I of the schedule will be subject to the affirmative resolution procedure. The House will therefore be able to discuss ice cream salespeople in great detail, as the right hon. Member for Penrith and The Border would like.
§ Mr. HealdWhen the matter was discussed in the other place on 28 June, my noble Friend Lord Lucas asked 1200 whether the Department for Education and Employment should be on the list because of university grant fraud which had apparently occurred. It was suggested that surveillance was useful in tackling that.
§ Mr. ClarkeI shall respond to that point when I wind up. I want to check so that I can give the hon. Gentleman an accurate reply. Amendments Nos. 41 and 42 tidy up the provisions that relate to specific activities in Northern Ireland. They have now become sufficiently substantial to merit a separate clause. We are considering important issues, which graphically illustrate the development of law as we move forward. I commend the amendments to the House.
§ Mr. HealdTo me, these will always be the Maclean amendments because my right hon. Friend the Member for Penrith and The Border (Mr. Maclean) discovered that rather than two or three authorities being involved, the list ran to a page and a half. It is right that they should be in the Bill and I welcome the fact that Departments are considering whether all relevant public authorities are listed. It is better to have a proper list. I understand that that issue has also been raised by the Delegated Powers and Deregulation Committee in the other place, which also thought that the measure should be set out as it now is. We welcome that initiative. I could make a number of other minor points, but the Minister covered them. However, I should be grateful to know the position on grant fraud. Apparently, people overseas have undertaken enterprising frauds involving university grants and funding for education in this country. Clearly the types of surveillance that we are discussing might be useful.
§ Mr. BeithI was one of those who raised the issue in Committee. My favourite example is the Government Whips' Office, which I strongly suspect of using directed surveillance—for example, to discover whether Labour Members used their constituency weeks or disappeared to some other place. Perhaps we should put these measures in context. We must recognise that they will draw into regulation large areas of activity that were not previously the subject of regulation and accountability. The Bill has received a bad press as being fundamentally oppressive and extending the power of the Government, but on both sides of the Committee it was felt that the initial stab at these measures was unsatisfactory and that we ought to declare, so far as is known, what bodies use directed surveillance. Those bodies ought to be covered.
In Committee, the Minister gave an assurance that he would seek to achieve that. It has been achieved and we are grateful to him and his officials. However, I accept that other bodies may need to be added to the list, using the affirmative resolution procedure. Unlike other provisions, these measures will not create the legitimate fear that bodies will take up such activities in a cavalier fashion. Surveillance to check that fraud is not taking place is a commonplace in all sorts of organisations—private business, for example—as it is sometimes necessary to check that taxpayers' money or customers' money is not being abused. We must realise that there is a wider area to regulate and I welcome the fact that previous amendments have ensured that the affirmative resolution procedure will be used to add bodies to the list. Taking those two together, a welcome improvement has been 1201 made to the scope of the Bill. I appreciate that the Government have listened to representations from all sides.
§ Mr. MacleanI am pleased to speak for a few moments to the Maclean new schedule. I am not proud, but, for the relevant fee and after making an appropriate declaration in the Register of Members' Interests—just as we are happy to save private Members' Bills on various Fridays despite vicious Government attempts to vote them down—I should be happy to assist the Government should they wish to privatise some aspect of parliamentary drafting. The new schedule—amendment No. 142—is remarkable in many ways because the need for it came to light on a Thursday morning. You will be aware, Mr. Deputy Speaker, that Committee business starts at a ridiculously early hour on Thursday mornings—indeed, before most Members have breakfasted and are fully alert as to a Bill's consequences. Fortuitously, we spotted a possibility in clause 27.
§ Mr. Charles ClarkeIs the right hon. Gentleman converted to the merits of Thursday morning sittings?
§ Mr. MacleanAbsolutely not. That was the only Thursday morning on which I was alert. I do not know on how many Thursdays I, and perhaps Labour Back Benchers and other colleagues, were not fully alert at 10.30 am. Had we considered the Bill in Committee at a proper time, another dozen new schedules could have been before the House tonight.
We had some fun over the ice cream salesmen, but the matter came to light—I am not being unkind—when the Minister, following his brief, quickly discussed clause 27, referring to those who may need intercepting on grounds of national security, detecting serious crime or the economic well-being of the nation. There was also a curious reference to protecting public health. It seems odd to include that in a clause that refers to NCIS, MI5 and MI6.
I asked the Minister to give an assurance that the sandwich gestapo of the NHS would not be involved. His answer alerted the whole Committee to the fact that other bodies could be involved as well as NCIS. The Minister produced a helpful although frightening list of organisations that have these powers. He is right and is to be congratulated on being the first to draw up such a comprehensive list. I am not suggesting that the Government are granting new powers to all those funny bodies to direct covert surveillance, because they had such powers in the past, and the Minister is trying to pull them together.
I have one little concern, however. The Minister's list broke down the Ministry of Agriculture, Fisheries and Food, the Department of Health and the other organisations with those powers into their different parts. We found it slightly amusing that MAFF' s egg inspectorate had those powers but not the banana directorate. If I may mix my fruit metaphors, the banana directorate is the plum posting in MAFF, because its officials have to go to exciting parts of the world to decide on the quota of bananas that Britain receives each year from those countries. I suspect that there are quite a few rackets, not among officials of course, but in the operation of the banana industry throughout the world. That directorate may need those powers of surveillance, but it is not on the list.
1202 The regulations merely stipulate the Government Department: for instance, they just refer to the Ministry of Agriculture, Fisheries and Food, and do not say which bits will have those powers. The egg inspectorate, the intervention board for agricultural produce and the sheep inspectorate, which checks on sheep numbers for the European Union, will presumably have those powers. I suspect that the wine intervention board will also need such powers. That is the second best job in MAFF. It is a burden that officials carry with equanimity, but a certain number of them are sent each year on a master of wine course and have the difficult task at certain times of the year of going round wine shops and confiscating two bottles of wine to ensure that it is labelled correctly in accordance with EU regulations. They discharge that duty every December. One bottle is sent for inspection, and the other is kept a few days for evidence. It would be wasteful to destroy it, so it comes in handy for other purposes, such as Christmas parties. We presume that that organisation would also have these powers.
I do not want to labour the point and try the House's patience, but I should like the Minister to tell us whether, if it is not appropriate to put in the schedule the different subsections of each Department—the various bits of MAFF and the Department of Health that will have these powers, such as the sandwich gestapo unit, so as to ensure that the egg in the sandwiches is not more than five degrees centigrade—he will publish the list annually or give an undertaking that, if asked a parliamentary question, he will list the units of each Department.
We do not want to know details about NCIS, the National Crime Squad and the Serious Fraud Office, but if MAFF, the Home Office and the Department of Social Security are listed as bodies that can direct surveillance, the Minister must answer parliamentary questions on the issue or publish each year a list of the separate divisions in each of those Departments that are using the powers. He cannot put that in the regulations, because the information may change weekly or monthly. I accept his word that the list in the schedule will have to change as more bodies come to light or as Departments change their names. I hope that the Minister will assure me that the Maclean schedule is not the end of the matter, and that he will publish annually a list of the subsections within Departments.
§ Mr. Charles ClarkeI can pretend to none of the expertise demonstrated by the right hon. Member for Penrith and The Border (Mr. Maclean) in the consumption of wine, whisky, bananas, eggs and various other commodities about which he clearly understands far more than I ever could. I am grateful for what he has said, however, because it allows me to clarify the position. The Department for Education and Employment was asked whether it wished to be listed in the schedule, but it did not, as it does not use covert techniques, even for the services that are mentioned. If the Department wanted lawful cover for such covert techniques, they would have to be specified in the Bill: that would be a policy matter that the Department would have to address directly. I hope that one of the benefits of the discussion will be the need for Departments and agencies to consider whether they really need the techniques involved. It will be an interesting discussion. I think that people have drifted into the sphere of techniques which, although they may be critically important in some contexts, may be less important in others.
1203 The intervention board is listed separately in the schedule. We listed only the public authority in the schedule because it, rather than its constituent parts, is the statutory body. However, we intend to narrow the range of agencies within a public authority that can authorise activity under part II. That will be achieved through the order for which clause 29 provides. The order will specify precisely the individuals holding certain offices, ranks or positions in the relevant public authority who can authorise such activity. For example, it might say that a senior immigration officer in the Home Office could authorise the conduct or use of a covert source. I think that that power to authorise covert activity will be of the greatest public interest.
We have no interest in hiding these matters. Indeed, we have worked to bring them into the open. I jib rather at the right hon. Gentleman's suggestion in Committee that I was trying to skip over the point, for that was certainly not my intention. I felt, and still feel, that not just the Committee and the House but the country should have a chance to see the matter in the round. We will, of course, be ready to answer parliamentary questions as the right hon. Gentleman suggests, but we intend to identify the individuals concerned directly. I hope that that gives him some reassurance.
§ Lords amendment agreed to.
§ Lords amendments Nos. 41 to 51 agreed to.