HL Deb 13 January 1994 vol 551 cc234-43

3.35 p.m.

The Lord Chancellor (Lord Mackay of Clashfern)

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Clause 1 [The Secret Intelligence Service]:

Baroness Blackstone moved Amendment No. 1:

Page 2, line 1, at beginning insert: ("where it is substantially").

The noble Baroness said: The purpose of the amendment is to ensure that the activities of the Intelligence Service are more accurately targeted. The amendment ensures that those activities are focused on the substantial economic well-being of the United Kingdom.

The work and function of all three secret services should be clearly defined and properly focused to avoid abuse and to ensure that the services are both efficient and effective. Clause 1(1) allows a wide remit for the Secret Intelligence Service. It is therefore necessary to ensure that subsection (2) is properly focused. In its current formulation, paragraph (b) of subsection (2) allows the service to act in some cases using means which are otherwise unlawful even when there is the possibility of only minimal impact on the wellbeing of this country. I refer, for instance, to allowing interference in another sovereign territory in order to seek a perhaps not significant order for a UK company. As drafted the clause allows the service to disrupt the activities of a pressure group in another country wishing perhaps to impose sanctions or conditions on trade. Groups in the United States wishing to impose the MacBride principles of equal opportunities for Catholics in employment in Northern Ireland come to mind.

The amendment ensures a proper prioritisation in the use of scarce resources so that relatively trivial economic benefits are not pursued using heavy-handed covert methods. The amendment prevents possible abuse. I beg to move.

Baroness Park of Monmouth

The amendment weakens the Bill and narrows it to an unacceptable degree. International intelligence, like international crime, is a seamless robe. It will almost inevitably have a beneficial effect on the country if our intelligence activities abroad can deter, for instance, the Russian mafia or indeed our old friend the original mafia from pursuing their operations. It is never possible to say in intelligence as in politics that events in a far-off country have nothing to do with us. In such fields as international terrorism or smuggling, there is bound to be a knock-on effect.

I feel strongly that in order to exclude instances of the kind the noble Baroness cited we risk making it impossible to do the really important things. And, believe me, they are important. We can be sure, with the requirements put on it by the JIC and Ministers, that the service has enough on its plate not to pursue trivial matters.

Lord Bridges

The last words of the sentence in the Bill to which the amendment relates are "United Kingdom". I wish to return to a matter I raised at Second Reading. The words "British Islands" in Clause 1(1) (a) are widely understood in Ireland, both north and south, as excluding them. The point was carefully dealt with by the noble and learned Lord when he replied to the Second Reading debate. He said that the correct definition of the phrase the "British Islands" is to be found in the 1978 Interpretation Act which defines the phrase as the United Kingdom of Great Britain and Northern Ireland, the Channel Islands and the Isle of Man. The noble and learned Lord's final words were: anyone who wishes to enlighten someone who has questions about that matter can do so with confidence".—[Official Report, 9/12/93; col. 1074.] The noble and learned Lord is absolutely right. I was trying to make the rather broader point that anyone who reads this Bill after it has been passed should understand where the Secret Intelligence Service operates. At present, because the phrase is not defined in the Bill and the reference to the 1978 Act is not inserted, it could be widely misunderstood in Ireland. Perhaps I should be rather more specific than I was at Second Reading. The present wording of the Bill, to someone having perhaps doubtful intentions towards Her Majesty's Government, could make it appear that the Secret Intelligence Service was operating in Northern Ireland. We have only to study the recent statements of certain persons like the president of Sinn Fein for example to see how likely it is that an Act passed by Parliament, with the best of intentions, could be misinterpreted by people and cause considerable political misunderstanding between the British and the Irish.

I had thought of putting down an amendment but it seems to be a matter which the Government are perfectly capable of dealing with at a later stage in the passage of the Bill. I therefore renew my request to the Government to look again at the matter which is small in itself but which carries the risk of a political misunderstanding that I believe to be real. That misunderstanding could easily be avoided by the insertion of an appropriate phrase, preferably a definition requiring only a line of print.

The noble and learned Lord made the point that the purpose of the Interpretation Act is to save a line of print and to give greater legal clarity. Those are admirable objectives. But we must not lose sight of the other broader problems to which I referred.

3.45 p.m.

The Lord Chancellor

Before I come to the amendment, perhaps I should say a word about what the noble Lord, Lord Bridges, said. The way in which Acts of Parliament are drafted is a matter of judgment, but where we have the benefit of a general Interpretation Act, defining a particular phrase, there is much to be said, for the purposes of consistency, for using the phrases as they are defined.

I understand the noble Lord to say that people who wish to mislead may seek to suggest that the phrase "the British Islands" in the Bill has a different meaning from the one it has in the Interpretation Act. As I said at the end of the Second Reading debate, I think it would be possible to correct that, if such a suggestion were made, by reference to the Interpretation Act. However, I understand the point which the noble Lord makes and although it is not directly related to the amendment, I have noted it.

As the noble Baroness explained, the amendment is intended to limit the scope of the purposes for which the Secret Intelligence Service may exercise its functions with regard to the interests of the economic well-being of the United Kingdom. Again, there is something to be said for consistency in these matters. I remind your Lordships that the reference to economic well-being also appears in the Interception of Communications Act 1985 and the Security Service Act 1989 and met with the approval of this House in both cases. The wording is carefully drafted to reflect the language of the European Convention on Human Rights. The convention recognises the interests of economic well-being without further qualification as a proper reason for interference with an individual's private and family life, home and correspondence.

The noble Baroness is anxious to prevent trivial matters engaging the attention of the service. I suggest that the Bill contains safeguards. It provides many safeguards in respect of the activities of agencies: an independent commissioner, a tribunal to consider complaints, and an oversight committee of parliamentarians. As my noble friend, who has great experience of these matters, said, it would not be wise to limit unnecessarily the proper activities of the agencies beyond those safeguards and the functions laid out in the Bill, particularly by introducing the subjective wording proposed in the amendment. There is no question of the agencies operating without certain restraints but care must be exercised so as not to impose needless fetters which would prevent their operating effectively when that is clearly in the United Kingdom's interests. Of course, as my noble friend said, it may not always be possible to say what extent of damage is in question at a particular time.

The phrase put forward in the Bill is fairly clearly precedented in subject matter closely akin to that before us. I venture to suggest to the noble Baroness that she may decide, in the light of that explanation, not to press the amendment.

Lord Bridges

Perhaps I may pursue the matter for a moment longer. The noble and learned Lord kindly said that he had noted the point I made. Would he be so kind as to go further than that? Would it be possible for him to consult some of his right honourable friends who are responsible for our policy towards Ireland, such as the Secretary of State for Northern Ireland and possibly also the Foreign and Commonwealth Secretary, to see whether they think the point has any merit and whether a small amendment might be introduced by Her Majesty's Government at a later stage in the passage of the Bill? If the noble and learned Lord could kindly go so far as that, I think that it might save us a great deal of trouble later on.

The Lord Chancellor

Of course, I am in the business of doing my best to save us trouble, and anything I can do to save your Lordships trouble I am certainly willingly do.

Baroness Blackstone

I was interested in what the noble Baroness, Lady Park, had to say. She claimed that the Secret Intelligence Service never pursued trivial matters. If that is the case, then I cannot see why she should oppose the amendment, which refers to the economic well-being of the UK and to matters which are substantially in our own interests. If the amendment were put on the face of the Bill, it would not affect the service's work, if it never pursues trivial matters anyway. I understand what the noble and learned Lord the Lord Chancellor says about the desirability of consistency with other legislation. However, I venture to suggest that perhaps it would be desirable if the other legislation were also amended in order to provide those safeguards.

The noble and learned Lord also claimed that the whole Bill is to provide safeguards. I must repeat what I said. It seems to me that Clause 1, on the functions of the Secret Intelligence Service, is very widely drawn. The purpose of the amendment is simply to focus more on what its functions ought to be. I have no wish to provide needless fetters, but I do not believe that what I propose would be needless fetters, particularly in the light of what the noble Baroness said.

I shall take the amendment away, reconsider it and perhaps come back at the next stage. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Blackstone moved Amendment No. 2:

Page 2, line 3, leave out ("serious").

The noble Baroness said: In moving Amendment No. 2, I wish also to speak to Amendments Nos. 3, 6 and 7. As in the case of Amendment No. 1, these amendments are designed to ensure that the activities of the Secret Intelligence Service and GCHQ are rather more accurately targeted. The amendments would ensure that activities directed at the prevention and detection of crime are restricted to the protection of the United Kingdom from threats which would have a serious effect on law and order.

To repeat what I said earlier, the work and function of all three secret services should be clearly defined and narrowly focused to avoid abuse and to ensure that the services are both efficient and effective. Clauses 1(1) and 3(1) allow a very wide remit for the Intelligence Service and GCHQ. It is therefore necessary to ensure that subsection (2) of both Clause 1 and Clause 3 is properly focused. In paragraph (c) of each subsection the current formulation would allow the Secret Intelligence Service and GCHQ to act in some cases by the use of means which are otherwise unlawful merely on the basis of having some possibly minimal effect on the wellbeing of this country; for instance, allowing interference in another sovereign territory in the detection or prevention of serious crime, but crime which has no relevance to the United Kingdom.

Paragraph (c) of the subsections gives specific consent to interfere in other sovereign states in order to deal with serious crime. The Bill does not require the consent of that sovereign state before that assistance is given. That power to intervene is not restricted to criminal activities which would affect the United Kingdom, but, as the Bill is currently drafted, includes crimes which are completely unrelated to the interests of the UK. Furthermore, the definition of serious crime provides insufficient protection. Serious crime is nowhere defined in this Bill. The nearest equivalent definition might be that of a "serious arrestable offence", as defined by the Police and Criminal Evidence Act 1984. That definition is very wide and could include the loss of a small amount of money to someone who was poor, or serious injury to only one person.

Like the previous amendment, the amendments are designed to ensure proper prioritisation of scarce resources, as well as to prevent possible abuse. I must remind noble Lords that we are talking about some £900 million worth of public money, which is the aggregate spending on these services each year. I beg to move.

Lord Archer of Sandwell

I listened very carefully to the first debate today because I was anxious to see how the noble and learned Lord the Lord Chancellor would expound the Government's thinking on this matter. I must say that I am left with some anxieties. If we can go "back to basics", we find that in Clause 1 we are told the functions of the security services. They are set out generally in subsection (1)—and they are set out in very wide terms. Let us look at paragraph (b): to perform other tasks relating to the actions or intentions of such persons [persons outside the British Islands]". That covers a very wide range of possible activity. It is so wide that quite clearly the Government have understood that some limitation has to be imposed on it. Perhaps it is not surprising that some of us would like to ensure that that limitation is not either too wide or too vague.

When one considers the proposal that the limitation is "anything outside serious crime", it becomes quite important to consider what might fall within the category of serious crime. Something depends—does it not?—on the context in which the expression is used. One could imagine the chairman of a bench of magistrates saying: "This illegal parking is becoming serious". Is that a serious crime? My noble friend suggested that we might look to see what is the construction of the expression "serious arrestable offence" in the Police and Criminal Evidence Act. I would certainly not be in favour of people who commit serious arrestable offences going undetected. But we are deciding whether these are matters so serious that they should be pursued not by the police but by the security services. An indecent assault can in certain circumstances, if it becomes an act of gross indecency, be a serious arrestable offence under the Police and Criminal Evidence Act. However anxious we might be to track down the perpetrators of gross indecencies, are we seriously suggesting that it should be part of the functions of the security services to track them down? If the intention of subsection (2) is that some limitation should be placed upon the very general words of subsection (1), one is left with a note of anxiety about the width of the words which are being used.

The noble and learned Lord the Lord Chancellor said that there are other safeguards in the Act. If I have understood it correctly, I am not certain whether in any individual case there are safeguards which would go to the construction placed by the intelligence services upon their functions. The first and obvious safeguard is that in certain circumstances people who will carry out certain activities require a warrant from the Home Secretary. But unless what they propose to do entails interference with property or wireless telegraphy within the country, or will take place outside the country, they do not require a warrant. I do not wish to anticipate future debate, but that safeguard does not seem to meet the case which we are now considering.

The other safeguard is the existence of the tribunal. However, as I understand it, the tribunal can consider only whether the services have reasonable grounds for carrying out a particular activity. That again does not seem to address their construction of their functions. It may be said that if one cannot challenge their construction of their functions, then it does not matter what goes into subsection (2), because they can do virtually as they like. But I hope that all of us give them credit for trying, so far as they can, to remain within their statutory functions as defined here, and for acting in good faith. If they are to address those limitations on their functions, then they ought to have guidance which is reasonably precise and which is reasonably narrow. For those reasons I hope that the noble and learned Lord the Lord Chancellor will consider the points made by my noble friend.

Lord Lloyd of Berwick

It is helpful that, although serious crime is not defined in the Bill, there is a definition of serious crime in Section 10(3) of the Interception of Communications Act 1985. I assumed, perhaps wrongly, that the same definition would apply to the Bill, although it is not incorporated. There the definition is any crime which: involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose; or … the offence … [is one] for which a person … of twenty-one and has no previous convictions could … be expected to be sentenced to imprisonment for a term of three years or more".

The Lord Chancellor

First, subsection (1) of Clause 1 sets up the authority and functions of the Secret Intelligence Service. The basic point is that, having directed attention under paragraph (a) to providing information, and so on, and under paragraph (b) to performing other tasks, it is under the authority of the Secretary of State. That is the primary responsibility and control of the activities of the service.

The purpose of subsection (2) is to specify or target more closely the way in which those functions may be used. I suggest that a general phrase such as "serious crime" is a good phrase to use in that connection. The subject matter to which my noble and learned friend Lord Lloyd of Berwick referred is close to that, but this function is more international in character than is the interception of communications. Therefore it is right that a general phrase should be used here without specific further definition.

The previous amendment sought to introduce the word "substantially". The word "serious" appears to me to have that kind of content which is sufficient to make it clear that the business of the service is not to deal with trivial matters but to deal with matters which would be regarded objectively as serious. Therefore, I suggest that it is a reasonable phrase to use in focusing the activities or functions of the service so far as crime is concerned.

The second branch of the amendment focuses on serious crime or serious effect on law and order in the United Kingdom. I can well understand that the noble Baroness wishes to prevent the Intelligence Service and, in respect of a later amendment GCHQ, from wasting resources in following up the concerns of other countries and their governments, but it is important to remember that these days crime is not a strictly national activity. Far from it, in many of its worst manifestations it is international in character. If one focuses too closely on effects in the United Kingdom, the result might well be to prevent the services from supporting foreign governments in, say, seeking to prevent traffic of illicit drugs outside the United Kingdom.

One could not be certain where such illicit drugs might land up. They might well be sold on the streets of London or some other city or town in the United Kingdom. But that might not be known at the stage at which it was desirable to disrupt the traffic in the foreign country. It might well be that if the formula were restricted in the way proposed on this aspect of the amendment, a very useful operation to prevent the drugs arriving in this country would be prevented because it could not be said with any degree of probability at the stage at which the disruption had to take place precisely where the drugs might eventually land up.

Therefore, I believe that it is not satisfactory that the agencies should be required to show as a matter of strict limitation of their function that an activity would have a serious effect in the United Kingdom before being able to act, although it is quite clear that the agency would not be interested simply in helping other countries with their concerns except in so far as there might be some consequence more generally for us.

This particular restriction might also have the effect of preventing the agencies from using information within their knowledge which, for example, might prevent a serious terrorist incident in another country. If, in the course of its work, the agency acquires information which points to something of a terrorist kind likely to happen in another country I should have thought it perfectly reasonable and to be expected that if the use of that information could prevent terrorism in that country the agency should be entitled to supply it to the country in question.

As I said, serious crime is increasingly conducted on an international level by transnational organisations. The Committee would not wish our agencies, given the opportunity, to be prevented from taking action against such organisations, even when they are not currently operating in the United Kingdom, although they might well do so at some later stage in their activities. That would be the effect of the second branch of the amendment proposed.

As I said, I believe that the term "serious crime" is sufficient in itself as a basis for focusing the functions of the Security Service. It was used without further definition in the 1989 Act and has served in that way. I agree with the noble and learned Lord, Lord Archer of Sandwell, that it is important that there should be reasonable focus as the foundation for the functions and objects of the service. But it is right, where the nature of the agencies' functions are as we have described, that the definition should be in fairly broad terms and that we should rely upon the agencies to operate those broad terms in a reasonable way. It is in that aspect that I referred to the other controls that exist on the activities of the agencies when I gave my answer to the first amendment.

4 p.m.

Baroness Blackstone

I am slightly puzzled by the response of the noble and learned Lord the Lord Chancellor on the definition of "serious crime". He said that it is a good phrase. I do not dispute it. It is a perfectly reputable phrase. But it seems to me that it is not a terribly good phrase if it is left undefined in a Bill of this kind.

Contrary to what the noble and learned Lord said, "serious" seems to me to be a rather subjective word. It could mean anything, depending on who you are and your view of what constitutes serious crime. I was very grateful for the intervention of the noble and learned Lord, Lord Lloyd, in that connection.

I wonder whether the noble and learned Lord, the Lord Chancellor, could tell the Committee why the definition in the 1985 Act—I believe that it was the Interception of Communications Act—should not be used in this Bill. I was puzzled by his comments on that. Surely it would be better if we were to have a clear definition on the face of the Bill. Perhaps he could answer that question before I come back to the second issue.

The Lord Chancellor

The mention of serious crime in this Bill refers to serious crime anywhere. The definition to which my noble and learned friend referred was concerned with serious crime basically under the legal systems of the United Kingdom. It is more difficult to give a definition in any kind of technical terms which is intended to apply internationally.

Baroness Blackstone

I am afraid that I do not follow that argument. I cannot see why the definition should not apply to the activities of UK agencies, whether they operate in the UK or overseas.

Perhaps I could turn to the second issue on whether we ought to confine these activities to threats to the United Kingdom. It seems to me that we ought to do so. If I may say so, I felt that the example given by the noble and learned Lord, the Lord Chancellor, with respect to illicit drugs and the drugs trade was perhaps not a terribly good one. I entirely accept that crime is not a strictly national activity and crosses national boundaries. However, the illicit drug trade is always a potential threat to law and order in the United Kingdom. Therefore it is an area of criminal behaviour which would be covered even if the amendment were accepted.

The noble and learned Lord's second example related to the investigation of terrorism in a foreign country which had nothing to do with the United Kingdom. He suggested that if we came across evidence of such activity, we would clearly want to investigate it. I wonder whether or not that is so. Perhaps we would simply wish to inform the appropriate agencies in the other country. Do we want the secret intelligence agencies of other foreign powers to investigate terrorism in the UK? I am not sure that we do. Perhaps the noble and learned Lord could answer those points.

The Lord Chancellor

In relation to the first matter, I was seeking to answer a question rather than to deploy an argument. My point was that the serious crime in question may not necessarily be a serious crime in the United Kingdom, though it may be in other countries. Therefore a definition under the legal systems of the United Kingdom would not be appropriate.

In relation to the second point, and in the light of the request of the noble Baroness, I should perhaps add that I said, for example, that if agencies had information which, if properly used, could prevent a serious terrorist incident in France, surely the noble Baroness would not wish to prevent the agencies making that information available to prevent the act of terrorism. If the amendment on that second branch is accepted, that would be its effect. Therefore, the amendment would be inconsistent with her wishes for the utility of the agency. It is not so much that the agency would be following up the matter as part of its own objectives; but it may possess information which would help to prevent a serious terrorist incident. Surely it would be right, in the interests of humanity, for that to be made available for the purposes of preventing such an incident happening.

Baroness Blackstone

I shall take the amendment away, read what the noble and learned Lord said and consider the matter further. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Strathmore and Kinghorne

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.