Security Service Bill

HL Deb 08 July 1996 vol 574 cc76-83

7.6 p.m.

The Minister of State, Home Office (Baroness Blatch)

My Lords, I beg to move that this Bill be now read a third time.

We are now concluding our consideration of the Security Service Bill. The Bill has not been changed in the course of its passage through the House, but in no way does that detract from the rigour of the scrutiny to which it has been subjected. At Second Reading I predicted that our discussions on the Bill would benefit greatly from the wealth of expertise that your Lordships' House can draw upon. I am happy to say that that prediction was correct. We have been able to draw upon the particular knowledge and personal experience of a number of noble Lords—expertise covering the police service; the intelligence agencies; and the workings of government, from both the ministerial and civil service perspectives.

Though this Bill is short, it is significant. It will enable the Security Service to use the skills and expertise that it has built up over many years in the fight against terrorism to support the police and other law enforcement agencies in their work against serious crime. Counter-terrorism work will still remain the service's top priority but it is clearly sensible that, when resources permit, the Security Service should be able to make a contribution to the efforts that are made to combat organised crime. I am sure the House does not need me to spell out the threat to decent society that is posed by organised criminals, and therefore the importance of bringing all the means at our disposal to the battle against that threat.

I know that the principle underlying this Bill has received support from all parts of this House. It is important that the House has been united in its determination that everything must be done to tackle the menace of organised crime. As your Lordships are aware, this Bill is not the only piece of legislation that the Government intend to bring forward to ensure that the response of the law enforcement agencies to organised crime is as effective as it can be. This Bill is a precursor of a package of further measures. They include the creation of a unified crime squad to build on the sterling work already done by regional crime squads, and a proper statutory footing for the National Criminal Intelligence Service. We also intend to legislate on police intrusive operations. That is a subject that we have touched on at several points during our consideration of this Bill and my right honourable friend the Home Secretary gave further details of our thinking on this only last week.

This is not the occasion to debate those issues. The plans have not been finalised, but let me assure the House that they are developing well and in line with the timetable required to meet our commitment to bring forward early legislation. Importantly, they also command the support of the police. It is clear from our discussions of the present Bill that your Lordships will wish to return to a number of important issues when this House comes to consider that legislation. That is entirely right and proper. In the meantime, there is no reason why we should not proceed with the present Bill. It is a discrete measure, even though it forms part of the Government's wider strategy for tackling the menace of organised crime. It is also a sensible measure, enabling, as I have said, our law enforcement agencies to benefit, where appropriate, from the skills and support of the Security Service.

Furthermore, by passing this Bill, Parliament will also send a positive statement of our firm intent to combat the drug traffickers, the racketeers and the money launderers with every legitimate means at our disposal.

The Government are determined to address the issue by making provision to allow the expertise and skills to be brought to bear. I think that I can speak for all parts of the House when I say that there should be no doubt about the importance of tackling the menace of organised crime firmly and effectively. Bringing the skills of the Security Service into play will help us to do that. I commend the Bill to the House.

Moved, That the Bill be now read a third time.—(Baroness Blatch.)

7.15 p.m.

Lord McIntosh of Haringey

My Lords, the Minister said that she thinks she can command the support of all sides of the House in our determination to fight organised crime effectively; and she is quite right. She knows that from the beginning to the end of our discussions on the Bill we have supported that aim. We have supported generally the package of measures which the Prime Minister set out in his Blackpool speech last year.

At the same time the Minister describes the Bill as being a "discrete" measure. I assume that she refers to "discreteness" rather than "discretion". It is not a discrete measure unfortunately. In Clause 2 it has implications for the police service and for the Security Service.

It might not have been immediately obvious when the Bill was first drafted, but I do not think that we should let the occasion of this Third Reading pass without recording that Clause 2, which deals with warrants, raises important questions of civil liberties. They were raised in Committee and in particular at Report stage, but unfortunately have not been resolved.

On the day after our Report stage, the Economist—not, I suggest, a journal particularly in opposition to the Government—had a fierce article about the Bill. It stated: An Englishman's home has always been his castle, inviolate from intrusion without a court warrant. No longer, it seems. As the Economist went to press, the Security Service Bill looked certain to canter through its final stages in the House of Lords on June 27th". I do not know whether the Minister or I would call it cantering through, but the Bill went through with two Divisions. The article continues: The Bill casually tosses aside individual freedoms for which Britons have fought for centuries". That is not only the view of the Economist. It was also expressed in leading articles in the Guardian and the Observer. More importantly, it was expressed in concerns by the noble and learned Lord, Lord Browne-Wilkinson, both in Committee and at Report stage. The noble and learned Lord described this as a "major constitutional shift". He asked three times as to whether his interpretation was right; and he did not receive an adequate answer. It is not just that the definition in Clause 2 of serious crime is very wide, although it is. The noble Lord, Lord Allen of Abbeydale, told the House correctly at Second Reading that the definition, as we have it, could cover a common burglar and a protester against the Newbury bypass.

That is not the only issue. The power to authorise a warrant for intrusive surveillance—the Minister has referred to intrusive activities—by the Security Service is to be given not on a judicial warrant but on an executive warrant, the warrant of the Secretary of State. That is the matter which was first determined in the case of Entick v. Carrington in 1757, which is now apparently to be overturned, I suspect without malice aforethought or without adequate thought. I cannot believe that it can seriously be the Government's intention to turn aside the most important rule: that the executive—Ministers—should not have the power to intrude into the homes of the people of this country.

The powers of the police are unclear and inadequate. As Ministers have recognised, it is true that they will have to be tidied up. But that should not justify, or be thought to justify, extending the warrant powers of the Secretary of State in relation to the Security Service, as is provided for in the Bill. At the very least, there ought to be congruity between the police powers and the Security Service powers when they seek to pursue for arrest and conviction, and as regards the detection of serious crime. That ought to be the minimum requirement.

There should be a further requirement that the executive, through the Secretary of State, does not have powers over the home of people in this country which have never been available previously to the executive and which have been deliberately confined to the judiciary.

We shall have to come back to many of these matters when we come to the further legislation which the Government now propose, as the Minister rightly observed. We shall have to consider police powers in particular for intrusive surveillance. There are powers for search warrants given by magistrates or judges. There are powers under the Interception of Communication Act 1985 for telephone tapping, and, presumably, also for interception of the post. But all we have for intrusive surveillance are the 1984 Home Office guidelines on covert listening devices and visual surveillance in private places. Those guidelines state only that they are applicable when normal methods have failed and when it is likely that such surveillance will lead to arrest and conviction. Those are not adequate safeguards. They have to be more precisely defined than in those Home Office guidelines.

That has been recognised by the courts. The case of Sultan Khan is now, I believe, before the Judicial Committee of your Lordships' House. That case follows the remarks in the Court of Appeal by the former Lord Chief Justice, Lord Taylor of Gosforth. Those results will be of great importance to the interpretation and validity of the Bill. The European Court of Human Rights is also considering the case of Alison Halford, the former assistant chief constable of Greater Manchester Police, who has complained of the bugging of her office, and I believe her home, by police colleagues. That case could result in a judgment that the existing British law, including this Bill, is a breach of privacy without judicial warrant which could be in breach of the European Convention on Human Rights.

It is by no means certain that the Bill will be enacted unscathed. Cases before both our courts and the European Court still leave the matter unresolved. However, as the Bill stands, I am afraid that I have to agree with the judgment of the Economist that, the Bill casually tosses aside individual freedoms for which Britons have fought for centuries". To that extent the Bill is, regrettably, in default of the proper care which Government should have for the liberties of the individual citizen; and of the most fierce parliamentary scrutiny—it is partly my fault—which might otherwise have been expected.

It is because we support the objectives of the Bill that we have been perhaps calmer than we might. However, I warn the Minister that when the rest of the package of legislation comes back before Parliament in the next Session, we shall look to ensure not only that the powers of the law enforcement agencies are adequate to the serious problems which they face from organised crime, but also that the package includes proper protection of the liberties of individual citizens of this country.

7.20 p.m.

Lord Harris of Greenwich

My Lords, on occasions like this there is always a temptation to repeat one's excellent Second Reading speech. I shall do my best not to do so. I tried to set out the background to the Bill on Second Reading and in my view nothing has been said during the Committee and Report stages or by the noble Baroness this afternoon that has undermined the judgment I then made. It was that there was understandable anxiety in the Security Service that there would be widespread redundancies. There was a hunt for new areas of activity where it could be argued plausibly that the Security Service had a contribution to make. That is the reality of the situation that we face with the Bill.

I am not an opponent of the Bill, but am sceptical for two reasons. First, only 17 or 18 members of MI5 will be involved in work of that character in any event. Secondly, I was interested to hear the noble Baroness say a few moments ago that "when resources permit" the Security Service would become involved in the activities she outlined. That rather implies to me that the number of MI5 officers involved will not be substantial although they can make a positive contribution for the reasons indicated by the Commissioner of the Metropolitan Police, Sir Paul Condon. I referred to that during the Second Reading debate.

The point to which I wish to return was touched on by the noble Lord, Lord McIntosh; namely, the case of Khan. I have the judgment of their Lordships' Appeal Committee on the matter and wish to refer to two of the judgments given on that occasion. First, the noble and learned Lord, Lord Slynn of Hadley, gave his judgment in turning down Mr. Khan's appeal. Mr. Khan was a rather unattractive gentleman in the heroin business in South Yorkshire. The noble and learned Lord said: Though I have no doubt in this case that the Chief Constable [of South Yorkshire] exercised his discretion fairly and bona fide I consider that fairness both to accused persons and to those who have to exercise this discretion make it highly desirable that such interceptions should be governed by legislation". We then come to the lead judgment of the noble and learned Lord, Lord Nolan. He said: The sole cause of this case coming to your Lordships' House is the lack of a statutory system regulating the use of surveillance devices by the police. The absence of such a system seems astonishing, the more so in view of the statutory framework which has governed the use of such devices by the Security Service since 1989, and the interception of communications by the police as well as by other agencies since 1985. I would refrain, however, from further comment because counsel for the respondent"— that is the Crown— was able to inform us, on instructions, that the government proposes to introduce legislation covering the matter in the next session of Parliament". The noble Baroness gave such an undertaking, but, as I pointed out, the Government have a perilously short period in which to carry through the undertaking. It is the period between November this year and April next year. After that, they have the good fortune of meeting the electorate. During that short period, the Government will presumably have to introduce the legislation. They could easily be faced with a situation in which the legislation has not passed through all its stages by the time the Prime Minister has to dissolve Parliament.

On a previous occasion, one of the noble Baroness's predecessors had to approach both Opposition parties after the Prime Minister of the day indicated that there was to be a general election. The Minister had to ask what sections of the legislation we were prepared to agree to pass into law, on that occasion without adequate discussion. We undertook to allow part of the Bill to go on to the statute book because of the urgency.

I hope that if we are to have a re-run of that situation, for the reasons given by the noble Lord, Lord McIntosh, there will be some form of discussion or consultation before we are faced with an approach of that kind. I would be extremely concerned at any suggestion that the person who would decide on the bugging warrants for police forces should be a Minister of the Crown rather than a judge. That is not just for the reasons given by the noble Lord, Lord McIntosh, but for different reasons. I do not like the idea of Ministers of any government becoming involved in operational policing issues. I cannot see how they could avoid becoming involved in such issues if they were to have the power conferred on them to approve warrants of that kind.

Apart from anything else, it seems to me that it would be far more sensible to allow a High Court or Crown Court judge to make a decision on the matter. I hope that that will be considered by the Government between now and the time when they introduce the legislation. I repeat that I hope that we will not be asked, just after the Prime Minister announces that he will be compelled to have a general election, to agree to pass legislation of this kind in a situation where we could not give it careful consideration. Some of us would be troubled by such a power being put in the hands of Ministers alone.

7.27 p.m.

Baroness Blatch

My Lords, despite what the noble Lord, Lord Harris of Greenwich, said, I recognise that both noble Lords agree with my opening statement that there is unanimity among us that this is an important issue for us to address. The noble Lord, Lord McIntosh, suggested that the property warrant power dealt with in Clause 2 amounts to a change of constitutional significance. For what he said he prayed in aid the words of the noble and learned Lord, Lord Browne-Wilkinson, at the previous stage of the Bill. The noble and learned Lord is not in his place.

Without presuming to get into a debate over legal interpretation, the Government's reading of the position is that the celebrated case of Entick v. Carrington established the important principle that a person's house should not be entered without lawful authority. With the passage of the Security Service Act 1989, subsequently updated by the Intelligence Services Act 1994, Parliament legislated to allow the Security Service to apply for warrants authorising entry on, or interference with, property under rigorously controlled circumstances.

Authorisation by the Secretary of State in accordance with this legislation represents lawful authority. All that has changed is that the Security Service will now be able to apply for property warrants in pursuance of its new statutory function relating to serious crime, in addition to its existing national security and economic well-being functions.

The noble Lord, Lord Knights, who is also not in his place, pointed out on Report that the distinction between national security and police matters is not clear cut. The police deal with counter-terrorism matters often in tandem with the Security Service. Terrorist groups get involved in drug trafficking to finance themselves. Further, no such distinction between national security and policing matters was made in the historic judgment that we have been discussing. The mischief that was being addressed in 1765 related to a case of sedition which, if anything, would be a national security case today.

In short, this Bill will not extend the Security Service's powers; it will merely extend the functions under which those powers can be applied. I do not accept that that represents a change of constitutional significance.

The noble Lords, Lord McIntosh and Lord Harris of Greenwich, referred to the lack of judicial authorisation. The Security Service is accountable to the Secretary of State. Being responsible for authorisation of the service's warrants is an important way in which he can exercise those responsibilities. It would be unprecedented and inappropriate to involve the judiciary in the intelligence gathering process, without knowledge of the target and before it was known whether criminal charges were in prospect.

Warrants can be authorised only in tightly controlled circumstances and the issue of all warrants is subject to scrutiny by the independent commissioner. He is a senior member of the judiciary and therefore provides judicial scrutiny of the decisions of the Home Secretary, applying the principles of judicial review.

I find it a preposterous idea to suggest that this Bill came about as a result of possible redundancies or, as I believe the noble Lord said, a lack of work for the Security Service. I do not believe that the Security Service has ever been more challenged than it is today. Its work is important.

That links well to the other point referred to by the noble Lord, Lord Hams of Greenwich; namely, my reference to "when resources permit". It must be "when resources permit", because the primary function for the security services is counter-terrorism. They will work in support of police activities, and will be requested by the police to support them in those activities. If they find that acceding to a request from the police would inhibit or thwart in any way their primary function, it would be for the security services simply to say that they were not in a position to offer that support. It must be right that the Security Service considers its primary function first.

Lord Harris of Greenwich

My Lords, the noble Baroness was kind enough to refer to my speech but said it was "preposterous". If it was quite so preposterous, I am mildly surprised that she did not bother to indicate as much when she replied to the speech that I made on the matter at Second Reading when, as my authority, I drew on a report by a House of Commons committee. Therefore she rather overstates her case.

Baroness Blatch

My Lords, I have not seen a statement in any House of Commons committee report which says that the sole reason for the Bill is somehow to fill a gap for the security services and prevent redundancies. If the noble Lord can find such a quotation, I should like to see it.

The Security Service Bill fulfils a very important function. But, in the fight against organised crime—money laundering, drug trafficking and the serious crimes to which we have referred during the course of the Bill—we also believe that bringing the expertise of the security services together with that of the police is a very important measure. We believe that the intellectual validity of the Bill is well understood. It is simply not a way of avoiding redundancies in the Security Service.

Finally, the noble Lord, Lord Harris of Greenwich, expressed his very real concern about putting on a statutory footing the surveillance work of the police. I repeat, yet again, what I have said on so many occasions: it is our intention to put it on a statutory footing. The noble Lord should not become too exercised about what would happen post-election. First, I expect that we shall still be here as the Government after the election. I know that irritates the noble Lord.

Even given what the noble Lord may be suggesting, I deduced from his remarks and from those of the noble Lord, Lord McIntosh of Haringey, that they, too, regard it as very important to underpin police activities by means of legislation. It would be a priority for any of the parties coming into power. We intend that the issue will be addressed at an early opportunity. As I said, work is well in hand, and we will keep faith with that. From remarks made, I believe noble Lords opposite support that approach. I have no doubt that, at the time, there will be arguments and lively discussions about means to an end. However, I hope that we shall now allow the Bill to receive its Third Reading. I commend the Bill to the House.

Bill read a third time, and passed.

The Earl of Courtown

My Lords, I beg to move that the House do now adjourn during pleasure until five minutes past eight.

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

[The sitting was suspended from 7.36 to 8.5 p.m.]