§ 3.8 p.m.
§ Baroness Blatch
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.—(Baroness Blatch.)
On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The CHAIRMAN OF COMMITTEES in the Chair.]
§ Clause 1 [Functions of Security Service]:
Lord McIntosh of Haringey moved Amendment No. 1:
Page 1, line 9, at end insert—
("( ) In subsection (4) above, conduct is "serious crime" if it constitutes (or, if it took place in the United Kingdom, would constitute) one or more offences, and either—
§ The noble Lord said: With the usual slow start that is necessary to enable noble Lords who have no interest or inadequate interest in this important Bill to leave quietly, I move Amendment No. 1.
§ Anyone looking at the Bill will appreciate that, although it is only a short Bill, it is a Bill of considerable significance both in terms of its object, which is to assist in the prevention and detection of serious crime, by introducing the power for the Security Service to assist in those functions, and because of the civil liberties implications of the Bill as drafted.
§ As the Prime Minister recognised, the Bill is only one part of a programme of measures to increase the effectiveness and accountability of law enforcement agencies, which are to include the Security Service. The Prime Minister in his speech last year to the Conservative Party Conference in Blackpool made a number of points with which I have already expressed agreement and which we on these Benches strongly support. We are in favour of the increased accountability and legislative provision for law enforcement agencies.
§ Perhaps it is paradoxical that the first piece of legislation to be introduced in implementation of the Prime Minister's wishes is the most difficult, because the Bill before us increases the power of the Security Service to act as a law enforcement agency in this country without in any way performing the other necessary functions of increased accountability and responsibility. Therefore, in dealing with the Bill we are always conscious that our criticisms of it are in the context of support for the Government's ultimate objective as regards this legislation.
§ However, it is our responsibility, which we are performing today, to look in detail at the provisions of the Bill. We face a number of difficulties in doing so because Clause 1 is couched in terms of amendment to the Security Service Act 1989; Clause 2 is couched in terms of amendment to the Intelligence Services Act 1994; and Clauses 3 and 4 refer only to the extent, the short title and commencement. Therefore, it will be seen that when the substantial contents of a Bill are framed entirely in terms of amendment to other legislation it is peculiarly difficult to express general concerns and make general points. I believe that we have succeeded in doing so in our amendments to Clause 1, but as regards our considerable concerns about Clause 2, I as an amateur found it impossible to express them in the form of detailed amendments. I have dealt with that by giving notice of my intention to oppose the Question that Clause 2 stand part of the Bill.
§ The difficulty is the greater because although the Bill purports to cover the range of issues which arise as a result of giving these new functions to the Security Service, it deals only with a small number of them. Clause 1 deals only with the new functions of the 1493 Security Service in support of the activities of police forces, and Clause 2 deals only with the issue of warrants. One can imagine a whole series of further controls that will be necessary in order to complete the process which the Prime Minister set out if the Bill were not so unrepresentative an advance guard of the programme of legislation which is required. I am sorry to make such a lengthy introduction to an amendment but it is important to see the context in which we are seeking to debate the Bill today.
Amendment No. 1 relates to the definition of serious crime. The peculiarity of the Bill is that Clause 1 refers to:
the function of the Service to act in support of the activities of police forces and other law enforcement agencies in the prevention and detection of serious crime".
§ However, there is no definition of "serious crime" in Clause 1. The only definition occurs in Clause 2, in which it is confined to the basis on which property warrants or interception warrants are to be granted and pursued.
§ I do not know what that will mean in terms of interpretation in the courts. However, if I were a judge required to consider whether, under Clause 1, the Security Service was acting properly in pursuing its function in support of the activities of police forces I would be inclined, first, to ask, "What is serious crime for the purposes of this section?", and then to say, "Well, there appears to be a definition of serious crime in Clause 2 and I suppose that the safest thing is to apply that definition to Clause 1". That might be a bit sloppy for lawyers but it is the way in which a layman looks at it.
§ Therefore, in Amendment No. 1 we propose that the definition of "serious crime" that is used in Clause 2 should apply also to Clause 1 so that the courts and anyone else seeking to implement the legislation should know what they are talking about. At the moment it is unclear what definition, if any, of "serious crime" is to be used for the purposes of Clause 1.
Having said that, and having adopted the exact wording of "serious crime" which occurs in Clause 2, I must say that the definition appears to be extremely wide. It refers not only to the detection of crime, where a crime has already taken place, but also to the prevention of crime. In many investigations that could justify a wide range of law enforcement activities. It is also true that the definition involves either (and I stress the word "either"):
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 or one of the offences … for which a person who has attained the age of twenty-one and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of three years or more".
I accept the point which the Minister made in her winding-up speech on Second Reading: that the definition of
a term of three years or more
§ is tighter than if it were simply an offence for which a term of three years or more could be given. I accept that there are many crimes for which although a possible sentence is three years or more in prison the probable 1494 sentence for a first adult offender is much less. There are fewer such crimes and therefore I agree that that point is valid. However, it is the fact that "serious crime" is defined so broadly either in terms of the offence involving the use of violence, substantial financial gain or conduct by a large number of persons in pursuit of a common purpose which causes us great concern. Members of the Committee who read the leading articles in yesterday's Observer and today's Guardian will realise that our concerns are felt more widely than simply in the Labour Party.
§ Perhaps I may give the particular example relating to the involvement of conduct by a large number of persons in pursuit of a common purpose. There is no suggestion that it should be a common illegal purpose; it is any common purpose. A great deal of legitimate protest could be included within the definition of "serious crime" for this purpose. In the hands of an authoritarian and unscrupulous Home Secretary—and I am not suggesting that our Home Secretary is authoritarian or unscrupulous—it could lead to a serious curtailment of civil liberty. It is not only the powers of the police (whom we can all see) which are now to be brought into the prevention or detection of "serious crime", but here we are concerned with Security Service personnel, whom we cannot see or call to account in the same way.
§ The necessity for this amendment is, first, a drafting necessity in that there should be prevention of serious crime for the purposes of Clause 1. But it also provides us with an opportunity to express our concern, which we have not yet been able to express in terms of the drafting of a definition, about the wide scope of the definition of "serious crime" which is used for the purpose of this Bill.
§ I shall not press this or any other amendment because we are in Committee on a Bill the purposes of which we support generally. Nevertheless, we need reassurance from the Government that they intend to have a definition which is sensible, usable and as tight as possible for the purposes of the Bill. I beg to move.
§ Lord Renton
Although the noble Lord is entitled to put forward and move the amendment in the way that he did, I rather feel that his argument falls clown when he complains of too wide a definition of "serious crime".
If the Security Service is to be given those new functions in order to assist the police, I do not believe that they should be limited. The police have a very broad responsibility in any event and it is a responsibility which is difficult to discharge in view of what in recent years has been a steady increase in crime. If we were to attempt to limit the scope of the new activities of the Security Service by having, however carefully drafted, a complicated and narrowing definition of "serious crime" we should be making a mistake.
Of course, I shall be interested to hear what the Minister says about this, but, quite frankly, my instinct is not to feel encouraged to accept this amendment.
§ Lord Williams of Mostyn
I support this amendment, although, as my noble friend Lord McIntosh pointed out, it has defects. I regret to 1495 say that I disagree profoundly with the remarks made by the noble Lord, Lord Renton. If power goes to the Executive, it is essential that it should be constrained and scrutinised strictly. One must look at the whole of the Bill to see the vice of which my noble friend complains.
We shall later be discussing executive warrants, which are dangerous in themselves. Only last week we had an interesting debate about the proper relationship between judicial control and executive power. No voice was heard to suggest sensibly or with any prospect of persuasion that judges' intervention in controlling executive power is wrong. This Bill intends to give power to issue executive warrants.
As my noble friend also pointed out, this is simply a skirmishing attempt to achieve a sense of proportion and public safety. If one looks carefully at the definition of "serious crime", one is aware that it cannot be sensibly upheld. It relates to any offence which "involves the use of violence". Does that include common assault? It does not even have the adjective "serious" to qualify the word "violence". It does not specify that it relates to violence which threatens public safety, public security or state security. It simply refers to violence. Is that power intended to cover such minor offences as common assault? What is "substantial financial gain"? What is,conduct by a large number of persons in pursuit of a common purpose"?I offer an example which may soon become reality. Let us assume that university students wish to protest against a visit to their campus of, for example, the present Home Secretary. Those students might be rowdy. Of course, they will offer no violence, but they might offer a certain amount of verbal criticism of the Home Secretary, in common with a large section of the rest of the community. They may well be committing an offence—conduct likely to lead to a breach of the peace. Is that the sort of conduct with which we are concerned, where the power is to be unrestrained by judicial control?
What are the Government contemplating here? The Bill relates to an offence:for which a person who has attained the age of twenty-one and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of three years or more".What sort of examples do the Government have lurking in the back of their mind?
I believe that the press, or part of it, has recently performed a useful public service in drawing attention to some of the defects. There is no doubt at all in my mind that in certain appropriate cases, circumscribed by a proper regime of judicial control, the use of agencies other than the police is essential. Such cases are not limited to security matters. There is an increasing number of cross-border frauds, some of which are linked to European moneys, many of which are linked to the passage of arms and many are connected with drugs. It is the last example which I wish to underline.
But if one has a proper purpose to serve, one first needs to define the purpose and then carefully erect structures and mechanisms for public control.
1496 Unfortunately, this Bill does not recognise those proper objectives and certainly does not get anywhere near fulfilling any objectives.
§ Lord Rodgers of Quarry Bank
If there is a skirmish, I should like to join it. Like the noble Lord, Lord McIntosh of Haringey, I have many reservations about the Bill. I expressed them initially in the debate on the gracious Speech and again on the Second Reading of the Bill when I said that I had a nagging feeling that this was not a good Bill. That remains my view. Although I remain, as I was then, an agnostic, and for that reason I wish to participate in any attempt to improve the Bill, I have a feeling that time will show that we have made a mistake and the Bill will be used to intrude into areas of national life which at present are not contemplated.
I agree with the noble Lord, Lord McIntosh: having once agreed to the Second Reading of the Bill, it is extremely difficult to amend it to take account of the anxieties which I believe are felt on all sides of the Committee. The attempt to make this amendment is a measure of the difficulties which may follow thereafter.
I was interested in what the noble Baroness, Lady Blatch, said about the role of MI5 in combating benefit fraud. I understand—although this is outside the area of my knowledge and competence—that such frauds are sometimes organised on a large scale. Certainly within the provisions of the Bill I have no objection at all to the Security Service playing its part in that. But can we be sure that that role will not be extended from organised crime and benefit fraud on a national scale to casual or occasional frauds which may be committed? Once the door has been opened, it will be very easy for it to be opened much wider.
The noble Lord, Lord McIntosh, drew attention to the proposed new subsection (3B) in Clause 2 of the Bill which states:conduct by a large number of persons in pursuit of a common purpose".The noble Lord, Lord Allen of Abbeydale, said at Second Reading that the subsection could cover protesters against the Newbury bypass. If that is the case, and if the lack of definition of organised crime in the clause we are now discussing could lead to the Security Service being linked with the police in dealing with protesters of that kind, it would be a serious matter. In another place much time was given to attempting a definition. I remain of the belief that if a definition can be found it would remove at least some of the anxieties for later stages of the Bill. For that reason I support the amendment moved by the noble Lord, Lord McIntosh.
§ Lord Gridley
Having listened to some of the arguments that have been made there remains a puzzle in my mind as to how one will reconcile the information the secret services need, or the way they work, with the functions that one wishes the police to carry out. We must consider most seriously other ways of proceeding. The secret service picks up information and passes it on to the police. The police may have an operation in mind which should not be disclosed. It is not desirable to limit in any way the functions of the police.
§ 3.30 p.m.
§ Baroness Blatch
The effect of the amendment would be to apply a definition of serious crime to all aspects of the Security Service's work in support of the activities of the law enforcement agencies in the prevention and detection of serious crime. I can see why this may appear attractive but I hope that, on reflection, the Committee will appreciate some of the drawbacks. Indeed those were spoken to eloquently by my noble friend Lord Renton with whose words I agree.
Crime does not always come in nice neat packages clearly labelled "serious" or "not serious". That is particularly true of the kind of work the Security Service will be doing. With its particular skills and experience, the service will be most effective gathering intelligence and infiltrating organised crime groups, who may extend tentacles into a wide range of activities. The very nature of the work means that the service will not always know what it is dealing with, particularly in the exploratory stages. Inevitably, some leads will turn out to be blind alleys and criminal organisations may find novel forms of criminal activity which were on the margins of a rigidly defined serious crime. There is a need for a degree of flexibility—as my noble friend Lord Renton said—and common sense in determining what lies within the function, without transgressing on inappropriate areas of inquiry.
We must avoid a situation where the Security Service is prevented from becoming involved in a case until there is certainty that it meets the requirements of a rigid definition of serious crime. That would hamper the service's effectiveness and create endless opportunities for unscrupulous defence lawyers to challenge the legitimacy of the Security Service's involvement on technical grounds. It is much better that the Security Service should initially have a degree of freedom to develop investigations but, at the point when the service wishes to employ intrusive investigative techniques, such as the entry on, or interference with, property or the interception of communications, it should be required to demonstrate that it is involved in combating serious crime as one of the controls over the issue of warrants. That is why the definition of serious crime in Clause 2, is restricted to the issue of property warrants following the precedent of the Interception of Communications Act 1985.
That is not to say that the Security Service will end up dealing with trivial cases. Indeed, Ministers have given repeated assurances that, in practice, the service is to be tasked with the investigation of organised crime, as it is commonly understood. This means that the service's principal targets under its new function will be drug traffickers, money launderers and racketeers.
Furthermore, it is clearly sensible to devote the limited resources which the Security Service will be able to devote to its new function to those areas where it can make the greatest contribution. This means the acquisition of intelligence on complex criminal organisations. The co-ordination arrangements between the law enforcement agencies and the Security Service are designed to ensure that this happens.
1498 The noble Lord, Lord McIntosh, referred to the definition as large numbers of persons in pursuit of a common purpose. The noble Lord said that the conduct does not have to be illegal. However, I refer him to new subsection (3B) of Clause 2 which states:Conduct is within this subsection if it constitutes … one or more offences, and either—(a) it 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".Those pursuing a legal common purpose cannot be caught by the Bill. That is made perfectly clear.
This Bill is one component of a package of measures designed to ensure that our law enforcement agencies can benefit from all the support, skills and structures they need to tackle organised crime effectively. The amendment would undermine the effectiveness of the Security Service's contribution to that effort. It would do so unnecessarily as there are alternative safeguards in place to ensure that the Security Service does not get involved in inappropriate areas. I hope, with that explanation, the noble Lord will not press the amendment.
§ Lord McIntosh of Haringey
The Minister will not be surprised to learn that I am unhappy with that reply not only because it shows a misunderstanding of the nature of the amendment and indeed the nature of the concerns underlying the amendment, but also because it presents a totally distorted picture of the way in which the amendment was moved and what it states. The Minister is saying that the nature of the involvement of the Security Service in law enforcement in the prevention and detection of serious crime is such that one cannot have what she called a rigid definition of serious crime.
There is no rigid definition in this amendment. There is no rigid definition in Clause 2. The definition of serious crime, which is given in Clause 2 and which we have adopted without change, is so broad as to be virtually non-exclusive. The Minister is right in saying that it refers only to offences which involve the use of violence or,substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose".However, there is an absence of a definition of what is meant by violence. As my noble friend Lord Williams of Mostyn suggested, it could be just common assault. There is an absence of a definition of substantial financial gain. Is it substantial financial gain to the putative criminal, or substantial financial loss to the putative victim? There is an absence of any restriction whatever on the nature of the purpose which a large number of persons could be pursuing. It could be anything from the Gordon Riots to the Peterloo massacre, or any public order event of the past 200 years where there could easily be a minimal offence of disturbing public order when the purpose itself was not only not illegal but could indeed be admirable.
§ Lord Renton
I am grateful to the noble Lord for giving way. I say with great respect to him—I am trying to help—that I think he has overlooked the limits of 1499 Clause 1(1). It introduces a new subsection referring only to "prevention and detection of serious crime". At that stage there would seem to be no purpose in limiting the activities of the security services to prevention and detection.
However, Clause 2 deals with the issue of warrants. The noble Lord is quite right, and the Government have anticipated that we need to be a little more precise and have a definition. That is what the Government have done. If the noble Lord were to confine his remarks to prevention and detection, it would be more to the point.
§ Baroness Hilton of Eggardon
Perhaps I may intervene. I believe that the noble Lord, Lord Renton, overstates the case. There is clearly a need to restrain the security services in their activities. Constitutionally it is extremely important that they should not transgress on to what are generally clearly matters for the police. It is essential that the security services should have a clearly distinct role and this intrusion into police matters should be carefully controlled, defined and monitored. That should not be allowed to be as broad or as wide as is being suggested. It is a very slippery slope down the path of non-accountability and potential injustice, not only to the public and the police but also the security services.
I believe that the Bill is seriously flawed. This amendment is an important restraint on what could be an extremely dangerous situation and a constitutional impropriety.
§ Baroness Blatch
Perhaps the noble Lord will allow me to intervene. That is a serious travesty of an interpretation of the Bill. First, the noble Baroness knows that the Security Service will not in any event act independently of the police. It will be tasked by the police, or the work will be done in support of the police or the other agencies mentioned in the course of the debates. The service will be acting only in that capacity.
My noble friend is right. In the early stages of any investigation we want there to be relative flexibility. Otherwise, as I said in speaking to the amendment, it is likely that the early, important activities of investigating and working for the prevention of crime will be thwarted by some legal definition as to whether the interpretation that noble Lords propose in the amendment would restrict the service because the task did not fall neatly into the category of the definition included in Clause 2.
§ Lord McIntosh of Haringey
That seems an utterly deplorable approach to the drafting of legislation. The Minister gives us an assurance that the Minister's intention in increasing the functions of the Security Service is to deal with major issues such as drugs, fraud, and so on. I accept that; I am grateful for it. If that were what the Bill said, we should be a good deal happier.
However, I believe that the definition is far wider than the Ministers give credit for. The noble Lord, Lord Renton, specifically said that my point about legitimate public demonstrations was invalid because the function had to be for the prevention and detection of serious 1500 crime. Without the definition of serious crime, one might have a perfectly legitimate demonstration by a trade union, environmental organisation, or whatever, and the police might call in the security services to install surveillance cameras to check people off against lists of what they would call troublemakers—members of Left-wing groups, supporters of the British Council of Churches, and all kinds of subversive groups—on the grounds that by doing so they might be assisting in the prevention of the serious crime of breach of public order.
Where a large number of persons are present in pursuit of a common purpose, there is the definition in the amendment of "serious crime". The absence of a definition of serious crime in Clause 1 makes the situation even worse. In effect, the Minister is saying, "Don't pay any attention to what the Bill says. The Bill deliberately does not have a definition of serious crime. Rely on the probity of Ministers". I rely on the probity of present Ministers. When we make laws, I do not rely on the probity of all possible future Ministers. I rely on our law to be properly discriminatory and to define the purpose and scope of legislation. This provision does not do that. The definition does not do that. The lack of a definition in Clause 1 makes the situation even worse.
If I had not already said that it was a probing amendment I should be sorely tempted by the inadequate nature of the Minster's reply. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ 3.45 p.m.
Lord McIntosh of Haringey moved Amendment No. 2:
Page 1, line 9, at end insert—
("( ) In carrying out its function under subsection (4) above, the Service shall be subject to the provisions of Parts VI (Codes of Practice) and VIII (Evidence in Criminal Proceedings) of the Police and Criminal Evidence Act 1984."").
§ The noble Lord said: This is a second attempt to pursue the general line of argument with which I may already have wearied the Committee. However, it is important that there should be a statutory expression for the controls under which the Security Service, like the police service, will operate in the prevention and detection of crime. The police operate under the provisions of the Police and Criminal Evidence Act 1984. For the purpose of this amendment, in particular they operate in accordance with Part VI which relates to codes of practice. There are important schedules attached to Part VI; Part VIII relates to evidence in criminal proceedings. Beyond that, the codes of practice which are subject to lesser parliamentary scrutiny are essential to our confidence in the police force and the rules under which it collects and presents evidence and makes possible prosecution of offenders.1501
§ We need to be sure that when the Security Service acts in accordance with the provisions of Part I of the Bill, it will be acting also in accordance with the same rules of procedure that apply to the police. I should have thought that that point was self-evident. I beg to move.
§ Lord Williams of Mostyn
I support the amendment. If the Government's purpose is, as the Minister indicated, for other agencies to act in support of the police, there must be contemplated circumstances in which agency employees or personnel would be obliged to give evidence. Alternatively, there will be applications by what the Minister calls, I think, clever defence lawyers.
§ Lord Williams of Mostyn
I was not sure whether there was complaint that one was clever or that one was a defence lawyer. I am obliged for the correction.
There will be a serious question about disclosure, and the discovery of documents—the usual questions that we have discussed and with which the Minister has dealt on many earlier occasions. There must be some regulation in the interests of the security services, defendants, proper transparent prosecutions and the judicial process. Unless one has a regime which is structured in the way indicated by the amendment in the name of the noble Lord, Lord McIntosh, there will be serious difficulties; and it will not simply be unscrupulous defence lawyers who seize upon them.
Lord Campbell of Croy
We are dealing with codes of practice. This is the moment when I should say something about the issue of warrants to the police.
Since the Second Reading on 14th May, a senior member of the judiciary has commented publicly on the absence of legislation on eavesdropping devices, also known as "bugs", suggesting that the whole area needed to be cleared up and, where necessary, legislation introduced. I pointed that out in the Second Reading debate; and that telephone tapping by authorities had been closely regulated for many years. But there has been nothing to control bugging, although it is far more intrusive and offensive.
The latest annual report of the Commissioner, the noble and learned Lord, Lord Nolan, was issued last week for the year 1995, under the 1985 Act. It records the number of warrants issued by the Home and Scottish Secretaries during that calender year. I remind the Committee that over 22 years ago I was for four years a Secretary of State personally considering whether warrants be issued or not in each case. This annual report gives a satisfactory picture, but in the light of what the noble Lord, Lord McIntosh, was saying on the last amendment, on a subject where we all share his concern, I quote from paragraph 9 of the report. It states that the number of warrants issued under the counter-subversion head remains very small. That is good news. From the Government's response to the debate on 14th May, it seems that the subject of the use of bugs by police is to be covered in the forthcoming Bill in the next Session. We will have to wait until it 1502 comes forward before we can discover what is intended. There is nothing at present on the use by private persons or private bodies of eavesdropping devices.
In replying to the debate in the middle of May, my noble friend Lady Blatch said that this would be part of a privacy Bill, but that, as we know, the Government are not proposing such a Bill at present. I draw attention to the fact that there is still a gap where eavesdropping devices are concerned with no codes of practice and no legislation. It requires to be filled, and since the debate I have had the support of a very eminent member of the judiciary.
§ Baroness Blatch
The amendment affords me the opportunity to state clearly what the position of the Security Service will be in exercising its new serious crime function, as there has been a certain amount of ill-founded speculation on the point.
The Security Service does not have, and never has had, any executive powers. Officers of the Security Service have no powers of arrest nor are they able to exercise any of the other powers that the police may, in certain circumstances, exercise such as the power to stop individuals and search them. That will continue to be the case under this Bill. The Bill confers no new powers on the service—it merely allows the service to exercise its existing powers in a new area.
It has always been the case in connection with the Security Service's existing functions that though the service may gather intelligence, at the moment when executive powers need to be exercised, such as an arrest or stopping and searching an individual, the matter is passed to the police for action. That will continue to be so when the service is acting in support of the law enforcement agencies against serious crime.
The codes of practice which the Secretary of State is required to issue by virtue of Part VI of the Police and Criminal Evidence Act govern the exercise of powers by the police such as arrest and stop and search. Since, as I have explained, the Security Service has none of the powers, the exercise of which the codes regulate, I hope the Committee will accept that there would be little point in applying them to the Security Service and that the first element of the amendment is therefore unnecessary.
Some have referred to the fact that one of the codes of practice regulates police searches of premises and it may be helpful if I were to clarify the position. The code of practice in question relates to searches authorised by a search warrant issued by a court. The Security Service may obtain from the Secretary of State a warrant authorising entry on, or interference with, property but these covert operations are very different from the kind of searches covered by the code of practice. As the Committee may be aware, the police too can carry out intrusive operations but when they do so, they are governed by a separate set of guidelines issued in 1984 rather than the code of practice in question.
Continuing in the same vein, may I say that I also believe the second element to be unnecessary. Part VIII of the Police and Criminal Evidence Act contains general provisions that apply across the board and, so 1503 far as they are relevant to the Security Service, it is bound by them. Nothing in the Security Service Act 1989 or in this Bill cuts across or supersedes Part VIII of the Police and Criminal Evidence Act.
As I mentioned at Second Reading, the Security Service in connection with its existing functions has considerable experience of gathering evidence in a form that can be presented in court. Security Service officers are also increasingly being called upon to give evidence in court. Let me assure the Committee that the Security Service is subject to all the normal rules of court and the laws of evidence apply to the service as they do to any other body or individual.
Perhaps I may say to my noble friend who raised the issue of police surveillance operations, that we have accepted the desirability of moving away from the existing administrative arrangements, although we believe that they have served us well up to now.
We have accepted that a statutory system would be preferable, but we need to look carefully, with the police, at the alternatives. There are some highly complex issues here and we are determined not to inhibit their operational effectiveness in this area. It is important to emphasise that the present Bill covers only one discrete element of the package of action against organised crime which the Prime Minister announced last October. Its scope is deliberately limited to a single issue that can sensibly be tackled in isolation. It is concerned only with the functions of the Security Service. We need to settle the question of police surveillance operations in the context of broader decisions including, of course, the details of the new national crime squad and the new arrangements for the National Criminal Intelligence Service. We are working on all those issues with the Association of Chief Police Officers and will make further proposals as soon as possible. In the light of what I have said on the amendment, I hope that it will not be pressed.
§ Lord Harris of Greenwich
I raised this matter on Second Reading in relation to a case involving a criminal defendant, a Mr. Kahn, a convicted heroin dealer, which is at the moment before the Appellate Committee of this House. The issue is fundamental. I had hoped to receive a letter from the noble Baroness following the Second Reading, as she did not deal with the matter in her reply, for totally understandable reasons. However, I received no such letter.
The question which has been raised in the debate is that MI5 and the police operate under totally different procedures. MI5 requires a warrant signed by the Home Secretary, the police operate under non-statutory Home Office guidelines.
§ Lord Renton
Will the noble Lord permit me to intervene? He said that the matter is being considered at the moment by the Judicial Committee of this House. Therefore, it is sub judice. It is not only contrary to 1504 practice but wrong for us to comment upon it in case we should try to exercise any influence over the decision of the noble and learned Lords on that committee.
§ Lord Harris of Greenwich
Nothing I say will necessarily influence the noble and learned Lords who are considering the case. I am discussing the issue of policy involved and merely pointing out that in the case of Mr. Kahn the matter is before the Appellate Committee of this House. The fundamental question which has been raised by the Association of Chief Police Officers repeatedly with the Home Office is whether the system should be perpetuated. Kahn merely illustrates the problem.
The noble Baroness's reply, so far as I understand it, is that the Government will at some stage in the future propose legislation to deal with the problem. However, we are in the last 10 or 11 months of this Parliament. The next Session will begin in October or November this year and the prospect of legislation being carried onto the statute book is a matter of considerable speculation. Why is the issue not being addressed in the Bill? It seems to me to be profoundly unsatisfactory that MI5 should operate under one procedure and the police under another. The police have said to the Home Office consistently that they are deeply uneasy about the arrangement. So far the Home Office has appeared wholly inflexible, save to say that at some stage in the future, maybe in the last three or four months of this Parliament, it might introduce a Bill. That does not seem to me a satisfactory answer in any respect.
§ 4 p.m.
§ Baroness Blatch
It is improper for the noble Lord to have invoked the name of Mr. Kahn in the course of this amendment. Anybody reading Hansard will believe that all the noble Lord's following remarks had a bearing on that particular case. My noble friend's intervention was absolutely right.
We are not inflexible. We have made it absolutely clear that there are a number of issues to be dealt with. I hope I made the point clearly enough that this is a narrowly focused Bill, and that this particular issue and the measures in the Bill are freestanding. They do not preclude any of the legislation that may follow. I also emphasised a number of times that the powers of the Security Service are not being changed one jot by the Bill. Under the Bill the service will be able to employ its existing powers in a new area of activity. I believe the safeguard is there.
§ Lord Harris of Greenwich
I am well aware of the fact that the powers of the Security Service are not being affected. The point put repeatedly by the Association of Chief Police Officers to the Minister's department is that it is highly undesirable that there should be two different procedures in dealing with cases of very similar character: one dealing with MI5 which means that the Home Secretary has to sign a warrant; the second being the police operating under non-statutory Home Office guidelines. As the Minister will be aware from her officials, this matter has been repeatedly put to her department. It fills some of us with a great deal of 1505 concern that this very unsatisfactory situation will be perpetuated. All that we have received from the Minister is an assurance that at some stage in the future a Bill will be introduced in Parliament. Given the fact that the Government have only some 10 months or less before the general election, the quality of that assurance is not very considerable.
§ Lord McIntosh of Haringey
I am sorry that my small amendment has been hijacked to some extent by those who wish to talk about warrants. I was not talking about warrants at all. I suggest that they are properly discussed in the context of Clause 2, and I shall offer the Committee an opportunity to do so. The noble Lord, Lord Campbell of Croy, will therefore forgive me if I do not respond to the points that he made, which are properly addressed in consideration of Clause 2. The same applies to that part of the remarks of the noble Lord, Lord Harris, concerned with warrants and to the Minister's reply.
It is useful to have the reminder from the Minister of what I said at the beginning of our considerations today; namely, the Bill is only part of a package of measures concerned with increasing the effectiveness of law enforcement agencies. It is the package of measures that we wish to consider. For that reason we find it very difficult to consider constructively a small part of a package of measures put before Parliament without knowing what the remainder of the package is. We have to examine the part that we are offered and take it as all that we are legitimately able to debate. We cannot assume that the Home Office will produce any particular piece of legislation even if, as the noble Lord, Lord Harris, rightly pointed out, there were an opportunity in the next Session of its going into law.
I am also not very happy with the Minister's repetition of the claim she made about there being no new powers for the Security Service. She said that, instead, existing powers are to be used in a new function. That means new powers—unless one is deliberately obscuring the issue, which I am sure the Minister is not. It is like George Bush saying, "Read my lips: no new taxes". He quite deliberately allowed it to be thought that there would be no increase in the level of any taxes, whereas literally what he said was that no new form of taxation would be introduced. When he broke his implied promise not to increase taxes he said: "I did not mean that at all; I simply meant that I would not introduce a new kind of tax". That was a deliberate piece of obfuscation. I hope and believe that the Minister is not a party to that. Existing powers applied for new purposes are in effect the same as new powers. There is no meaningful distinction so far as the scope of activities of the Security Service is concerned.
The Minister gave the assurances I sought so far as Part VIII of the Police and Criminal Evidence Act is concerned. At least, I think she did; I shall read her reply very carefully in Hansard. I understood her to say that nothing in the Bill supersedes or detracts from the coverage of Part VIII of the Police and Criminal Evidence Act. She did not make the same assertion about codes of practice. However, I hope that she meant that the Security Service, when operating its intelligence 1506 gathering functions under the Bill—we all agree that the Bill is concerned with the question of intelligence gathering rather than arrest or the functions of constables—will be controlled by the same codes as the police. I seek an assurance from the Minister that when the Security Service is called in to assist in the activities of police forces, those called in have no powers that are not available to the police. That is the assurance we are looking for. I should be grateful if the Minister would dot the i's and cross the t's.
§ Baroness Blatch
I understood that the amendment tabled by the noble Lord, Lord Rodgers, was to be spoken to with this amendment.
§ Lord McIntosh of Haringey
Amendment No. 6 is to be spoken to with Amendment No. 3. At the moment we are concerned with Amendment No. 2. Perhaps that gives the Minister a moment or two more to consider the very direct question I am putting to her. Can she give the Committee an assurance that, when the Security Service is called in under the provisions of Clause 1 of the Bill, it will have no powers that are not available to the police?
§ Baroness Blatch
Is the noble Lord still speaking to Amendment No. 2? The debate has continued for so long that I thought that we had moved on.
The powers that the Security Service has now are not being extended in the Bill. What the Bill will facilitate is that the existing powers of the Security Service will be applied in a new area of activity. Therefore the powers will not be the same. As I have already made clear, the Security Service, for example, has no powers of arrest; the police services do have powers of arrest. Therefore there is already a distinction in that particular area. The Security Service will use existing powers—no additional ones—and will act in support of the police services.
§ Lord McIntosh of Haringey
That is what I feared. So the situation is much more serious than it appeared. We are back to George Bush and his ambiguous election promises.
What we need is not an assurance that the Security Service is being given no new powers over those that it presently has; we want an assurance that when it acts in support of the activities of police forces—in other words, in dealing with the criminal law in this country—it does not have powers that the police do not have. We need to know that there will not be a new body of law enforcement officers coming in to do work which in the past has been done by the police, with powers about which we do not necessarily know, because the Security Service is a secret service, that are not available to the police. We know that the police have powers that are not available to the Security Service. We want to be assured that the Security Service, when acting in support of the police, has no powers that the police do not have.
§ Baroness Blatch
That sounds a very convoluted way to put the point. But I can give the noble Lord the assurance that the Security Service will have no powers that the police do not have.
§ Lord McIntosh of Haringey
I am satisfied with that answer. I am grateful for it. It is of enormous importance 1507 in a civil liberties sense to know that those who perform functions which have been the functions of the police in this country will be subject to the same rules and the same restrictions on powers as are the police. I am enormously grateful. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McIntosh of Haringey moved Amendment No.3:
Page 1, line 9, at end insert—
("( ) In carrying out its function under subsection (4) above, the Service shall be subject to the provisions of Part IX of the Police and Criminal Evidence Act 1984 (Police Complaints and Discipline)."").
§ The noble Lord said: This is a related but separate amendment. It is the amendment being discussed in conjunction with Amendment No. 6 tabled by the noble Lord, Lord Rodgers of Quarry Bank. It is complementary to Amendment No. 2. Once we have established that the Security Service, in performing these functions, has no powers which the police do not have, it is rational to say that it will be subject to the same procedures as those set out in Part IX of the Police and Criminal Evidence Act 1984—police complaints and discipline—which set up the Police Complaints Authority.
§ To make sure that I am perfectly well aware of it, the Minister will tell us that the Intelligence Services Act 1994 establishes both a commissioner and a tribunal for the Security Service. I take it that the roles of the commissioner and the tribunal are in no way affected by the Bill; in other words, all the other activities that the Security Service has always undertaken will be subject to the provisions of the Intelligence Services Act.
§ Without again getting into the new power argument, we are now talking about a new function for the Security Service. It operates alongside police forces in activities which, when carried out by the police, are subject to the provisions of Part X of the Police and Criminal Evidence Act, which established the Police Complaints Authority. I do not mind whether it is by way of my amendment or the amendment of the noble Lord, Lord Rodgers; we are simply looking for an assurance that the Police Complaints Authority has the same responsibility for all those who undertake those actions, not just the police. I beg to move.
§ 4.15 p.m.
§ Lord Rodgers of Quarry Bank
I am happy to respond to the remarks of the noble Lord, Lord McIntosh of Haringey. The objective of his amendment, in my view as in his, is the same as that of Amendment No. 6, which I intend to move.
On Second Reading, substantial anxieties were expressed on all sides of the Chamber—notably by the noble Baroness, Lady Hilton of Eggardon, who is present today, the noble Lord, Lord Allen of Abbeydale, who is not in his place, and the noble Lord, Lord McIntosh of Haringey, as well as myself—about the arrangements for dealing with complaints. But they 1508 were barely referred to by the Minister in reply. Principally, the noble Baroness drew attention to the existing arrangements and did not take account of what the noble Lord, Lord McIntosh, has referred to as the new function of MI5. In other words, she referred to the roles of the Police Complaints Authority in dealing with complaints against the police and of the Security Service's tribunal and commissioner in continuing to carry out their different duties in respect of the Security Service.
However, there is a new situation. I hope very much, whatever the noble Baroness says in reply, that she will recognise that. The object of the Bill provides for the Security Service and the police to work together. Yet there will be two totally different ways of dealing with complaints. The matter was explored at some length in another place. Some very interesting exchanges took place. For example the Minister was asked:If somebody complains to a police force and is unaware that the Security Service is involved and it becomes clear to the police that it was a Security Service matter, will the police tell the complainant that the Security Service is involved?The Minister, in reply, said:As I understand the present position, the police will investigate. If the matter does not concern a police officer, the police will inform the person that there is no case to answer in the context of any of their people and will give the complainant the leaflet that I described"—to which I will refer in a moment—pointing him in the direction of other sources to which he can make a complaint".The matter was pursued. Questions were raised about exactly how a complainant would be told that a police officer was not involved and about the need to give the complainant a clear indication of the person to whom he should complain. The Minister replied:I understand that that would not be the usual procedure".—[Official Report, Commons; 14/2/96; cols. 1026–271.]In my experience, when Ministers—I include myself once upon a time—say, "I understand that", they really mean, "I don't understand this at all but this is what I have been told to say." That includes Ministers of both sides. I see that the Minister shakes his head. I have had long experience; it is a well known formula, which is popular with the Civil Service as well as Ministers. Ministers do not usually admit any doubt about understanding what is said. They say, "I know that", "I will" or "I do." If they say, "I understand that", they mean, "I don't understand what is going on but this is what has been written on a piece of paper and I am going to repeat it to the Chamber", whatever Chamber it may be.
That being the case, there is cause for concern. That concern grows at the mention of the leaflets. The Minister may have seen them; I assume that they are in the Library of the House. I expect that they are familiar to all other Members present today and that I alone am ignorant of them. Perhaps the Minister will be very obliging and send me a copy before we reach Report stage. But it is a rather curious procedure. The complainant complains and, after some interval, the police say to him, "Not me, guy. Take this leaflet and see if you can come up with somebody else. Cheerio."
1509 I am sure that that is not the proper patois on some occasions but the meaning is clear. It is a case of saying to the complainant, "We have had a look at it. It may have taken weeks or months. Indeed, I cannot remember when you made your complaint. I am sorry, old chap, but it was not us. Here is a leaflet. Go away and look at it".
It is a very interesting leaflet indeed. Again, according to the Minister in the other place, it contains a comprehensive list of alternative avenues of complaint. The complainant, knowing that it was not the police but not knowing who it was, is therefore left to go seriatim through a long list of other organisations to which he may complain before coming up with MI5.
I make ridiculous what I regard as a ridiculous procedure. Certainly, nothing said so far in either Chamber makes me feel confident that, however few they may be, the way in which complaints will be dealt with is consistent with the high standards that Parliament requires in such very difficult and sensitive areas. Whatever the Minister may say today, I hope that before Report stage she will come up with a better formula for dealing with the problem as we see it.
First, the amendment—Amendment No. 6, to which I am speaking principally—is right in principle in saying that there should be a single, simple channel of complaint. I believe that that is necessary to protect the public, the police and their present arrangements, and the Security Service too. In the absence of such procedures, the Bill—I am not one of its strongest supporters but, given the reservation I have mentioned, I wish it well—will come into disrepute because of its failure to deal adequately with complaints.
I referred to delay. What kind of delay does the Minister anticipate a complainant would suffer before the police came back with the answer that it was not a complaint against the police but a complaint against some other person unknown who may or may not have been involved?
Secondly, how can the Minister ensure that there is no conflict between the police and the Security Service when two persons may have been involved in a single event which led to the complaint? If those two persons, one being a member of the police force and the other a member of MI5, were each responsible for the cause of the complaint, how will the two complaints be dealt with in parallel? Thirdly, given all the experience we have of these sorts of uncomfortable arrangements between two services with different cultures, techniques and backgrounds, can we avoid buck-passing on the one hand or the alternative of collusion on the other, neither of which can be satisfactory?
Finally, it seems to me that one of the victims—I have referred to this but must emphasise it—of the arrangement spelt out in the Bill will be the Police Complaints Authority. We know that in some people's minds, though not in mine, it is not wholly above suspicion. But if the provisions of the Bill stand, how can we be sure that those who may have a legitimate complaint will believe that they can get it through the clear, relatively simple procedures now in place? How 1510 soon shall we find that the probity of the Police Complaints Authority is, fairly or unfairly, called into doubt? I ask the Minister to think again.
§ Lord Knights
First, I express my regrets that I was not present for the Second Reading of this Bill. It was my intention to be here, but circumstances combined to prevent me.
I should begin by saying that I find myself of two minds in considering these amendments. On the one hand, I can well understand the views expressed by the noble Lords, Lord Rodgers of Quarry Bank and Lord McIntosh of Haringey, regarding the position where two different organisations are working together. I can well understand their wishes that there should be a clear, open, acceptable system for calling to account the actions of officers, whether working on their own or together. I also recognise the possible difficulties when it comes to their being disciplined and appearing before different tribunals.
On the other hand, I find myself wondering whether the problems are not a little more imagined than real. Have not police officers and security officers worked together before? Have those operations produced problems of this kind? What is different today? Serious crime, organised crime—or whatever other definition one may give to it—is surely no different from terrorism or major international fraud which, together with espionage, have been the remit of the Security Service since 1989 and non-statutorily before that.
Clearly there must be joint working with the police in those fields. What about joint police/Customs operations? They have been going on for a long time. Have any problems relating to accountability surfaced there? It would be helpful if we could know the subject of the 21 complaints levelled against officers of the Security Service last year, and indeed the years before that. Were they the kind of actions which your Lordships had in mind in tabling the amendments?
I suggest that the difficulties we are experiencing in this matter stem from the cloak of anonymity and confidentiality which covers the activities of all the security services. I shall no doubt be accused almost of sacrilege if I inquire whether that is still completely necessary or justified in all the circumstances. It will be interesting to see how the different practices work in joint operations against organised crime.
More to the point, perhaps, until October 1992 it was the police who were responsible for intelligence operations against the IRA in mainland Britain. The officers engaged in those operations were accountable for their actions in exactly the same way as any other police officer. If it were not for the confidentiality and anonymity aspect, we could well see a better way of dealing with complaints against Security Service officers.
The more one thinks about the difficulties, the more one wonders whether they were given any consideration at all before this Bill was presented. Might it not be better to ensure that the police have, in their own organisation, the special skills of the Security Service in the fields of acquiring intelligence, processing and 1511 assessing it—I believe they do—rather than seeking to provide them in this clearly complicated way? On balance, I find myself in favour of the status quo without complicating the matter even further, which is what the amendments would do, and I would therefore be opposed to them.
§ Baroness Park of Monmouth
Perhaps I may add to that. I was deeply impressed by what the noble Lord, Lord Knights, said. I have two concerns which are relevant.
At Second Reading I said that I was concerned about adding more commitment to an already fully committed and small service. What concerns me now specifically is, for instance, the lack of clarity about the powers of the co-ordinator. Will he have powers to decide that the police should be free to act on information received from a long-term security source asset which the service may need to protect for long-term strategic reasons? Clashes of interest will arise which may be difficult to resolve. For instance, it could easily happen in relation to the IRA or drugs.
Secondly—this relates to what the noble Lord, Lord Knights, said—although I realise that security officers may have to relinquish anonymity in court proceedings if that proves to be necessary and I understand the desire for transparency particularly in the interests of justice, the service is a small one. Eventual disclosure of most of its officers could only be bad for its long-term operations. One must remember that if those officers are publicly identified one by one, life will be extremely dangerous for the agents they run. That is true not only in Northern Ireland, but also in other areas. When there are only a few people in an organisation one cannot afford to have them identified quite so happily as one may with the police force. I entirely accept that in certain areas the dangers are the same. But that is another reason why I feel deeply uneasy about the new tasks the service is being given. I hope that some consideration can be given to those factors which are professional but need to be mentioned.
§ Lord Harris of Greenwich
Not for the first time I find myself in broad agreement with the noble Lord, Lord Knights. It is difficult to see, though I agree with the general thrust of my noble friend's argument, how one can deal with the complaints situation effectively.
The noble Lord, Lord Knights, said that there is the problem of the climate of secrecy which envelopes the Security Service in this country, unlike the situation in the United States where there is a large sign south of Washington telling one where the offices of the CIA are.
The problem in relation to complaints is an exceptionally difficult one. As the noble Baroness will have been informed, the deputy chief constable is responsible for investigating complaints against a police officer. The complaints can fall into one of two categories. First, it may be a criminal offence, in which case the papers are sent to the Director of Public Prosecutions; secondly, it may reveal evidence of a disciplinary offence in which case the chief constable ultimately, after consultation with the Police Complaints Authority, may bring proceedings against that officer.
1512 The question which my noble friend Lord Rodgers of Quarry Bank asked was this: how does one deal with the problems of the individual complainant? He goes to a police station. There he will obtain the existing leaflet—I have not seen any new one—which tells him what his rights are in terms of making a complaint. He makes his complaint. The deputy chief constable then starts an investigation in an operation in which both the police and the Security Service have been involved. Does the deputy chief constable, in the view of the Minister, have locus in this matter? Can he investigate a complaint of allegedly improper behaviour by a member of MI5? What happens if the complaint is made against three or possibly four people, three of whom are police officers and one a member of the Security Service? Does the deputy chief constable have the responsibility of continuing that investigation or does he say, "I will investigate the allegations against the three police officers, but as regards the member of the Security Service, I cannot investigate that"? I would find that a very difficult outcome because one may be faced with a situation where three police officers may well say, "Mr. X has a legitimate complaint, but it was not us who did it, it was our colleague who is a member of the Security Service". That is the first problem; namely, the position of the deputy chief constable and the investigation of a complaint under his personal jurisdiction.
We then come to the disciplinary hearing. The chief constable will preside and possibly, in some cases, with a member of the Police Complaints Authority sitting in. That tribunal would have only the responsibility of considering the allegations against the two or three police officers and not that against the member of the Security Service against whom the policemen may well say, "He is responsible". He will be judged by a different tribunal. One has only to begin rehearsing some of these problems. They are real problems, because the noble Baroness can take it from me that a number of chief officers have raised this problem with me. We all accept that there has to be a complaints system affecting both the police and the Security Service and, in certain circumstances, Customs & Excise who may be involved in drug-related offences. One has to have a complaints system which has the confidence of the public. How will the noble Baroness reply to the particular questions that I have put to her? I shall be very grateful to hear her response.
§ 4.30 p.m.
§ Baroness Blatch
I have no doubt at all that the noble Lord, Lord Rodgers of Quarry Bank was an exceptional and outstanding Minister. It is just conceivable that he never had to resort to the words, "as I understand". I admit wholeheartedly to fallibility. From time to time I have used the words, "as I understand", but not, I hope, very often because I have no idea what the information is. I have learnt the hard way that in dealing with technical and legal matters it is better not to stand at the Dispatch Box and sound as though I know everything about everything. "As I understand" does at least give me the opportunity to write subsequently if I am not right on the first occasion. The phrase "as 1513 I understand" is useful. It is not a sign of incompetence, but a sign of being cautious where matters are intricate and involved.
That is an important issue and it is right that we should debate it. Amendment No. 3 and new Clause 1 both stem from the wish that Security Service officers, when acting in support of the police and other law enforcement agencies, should be subject to an adequate complaints procedure which safeguards the interests of the public.
The Government share that view. That does not, however, mean that the Security Service should be subject, when working against serious crime, to an identical complaints procedure to the police, as would be the effect of Amendment No. 3. Indeed, there could be positive disadvantages in making the changes that this amendment proposes. Similarly, I am not persuaded that the new clause proposed by the noble Lord, Lord Rodgers, is necessary or would enhance the Bill.
Before moving on to the detail of the proposed amendments I should like, with the Committee's indulgence, to describe the complaints mechanism which covers the Security Service at present and which will apply to the new function as well. As part of a wide-ranging set of safeguards, the Security Service Act 1989 established the independent Security Service tribunal to investigate complaints.
Under the 1989 Act, any person can complain to the tribunal about anything they believe that the Security Service has done to them or to their property. That person can be an individual or an organisation and a complaint about a person's property may include the place where they reside or work. Any complaint that is not trivial or vexatious will be looked into. The members of the tribunal are all senior members of the legal profession. For complaints relating to action against property the tribunal will involve the Security Service Commissioner. The tribunal and commissioner have full powers to call on any official documents or information they may need.
If the tribunal finds in favour of a complainant, it has the power to order the termination of the service's inquiries and the destruction of records; it has the power to quash warrants; and it has the power to order suitable compensation to be paid. This constitutes an important and robust safeguard, which must not be taken lightly. These procedures were approved by Parliament; they have been in force for more than six years and they have worked well. The independent Security Service Commissioner, who reports on all aspects of the work of the Security Service, has not had cause to question the impartiality or effectiveness of the complaints mechanism. The procedures have also been endorsed by the European Commission on Human Rights.
Amendment No. 3, proposed by the noble Lord, Lord McIntosh, seeks to superimpose the police complaints mechanism on to these tried and trusted procedures, in relation to the Security Service's new function. The mechanism for dealing with complaints against the police, set out in Part 1X of the Police and Criminal Evidence Act, was created with the police in mind. It takes account of the duties and responsibilities 1514 of the police and the fact that the police have daily contact with the public and also have executive powers, such as the power of arrest, which the Security Service do not possess.
By contrast, the Security Service tribunal was established to investigate complaints against the Security Service and in its procedures and operations is mindful of the special needs of the service. So, for example, it is careful to preserve the confidentiality of the names of Security Service officers. That was a point mentioned by my noble friend Lady Park of Monmouth.
These bodies are separate and independent and I suggest to the Committee that it would be unwise to confuse their respective responsibilities. A consequence of passing this amendment would be that officers of the Security Service would be subject to two different complaints mechanisms—the police complaints mechanism when they were working in the serious crime field and the Security Service tribunal at all other times. It would also mean that it could become possible for a suspect to make a complaint simply as a way of determining under which of its functions the Security Service had an interest in him.
The Security Service already works closely with law enforcement agencies in relation to its existing functions, in particular in the counter-terrorism and counter-proliferation fields. The fact that more than one complaints procedure applies to those working in joint operations has not caused problems. Similarly, the police and Her Majesty's Customs & Excise frequently work together on joint operations yet their officers are subject to a separate complaints mechanism and this has not presented problems, either. Those were points which were very well made by the noble Lord, Lord Knights.
There is another aspect to this, also related to Customs & Excise. Though the Security Service's serious crime work will normally be conducted in support of the police, on occasion the service will support other law enforcement agencies such as Customs but also possibly the Serious Fraud Office or the Immigration Service. It would be a very strange state of affairs indeed for a Security Service officer, acting in support of Customs, to find himself subject to police disciplinary procedures. Are we suggesting that every time two agencies co-operate over an operation their complaints procedures should be aligned in some way? I do not think that that is necessary or desirable.
The new clause proposed by the noble Lord, Lord Rodgers, takes an alternative approach but I fear that it shares a number of the pitfalls.
Let me deal first with subsection (1) of the proposed clause, which seeks to restate the role of the Police Complaints Authority even though there is nothing in this Bill which would preclude or limit investigations by the Police Complaints Authority. More specifically, the amendment seeks to reinforce the Police Complaints Authority's role in respect of investigations intoactions undertaken by … police officers in pursuance of activities authorised by this Act",but this Bill does not authorise any action by police officers, apart from the simple task for the designated chief officer of agreeing co-ordination arrangements 1515 with the Director General of the Security Service. Beyond that, there is no reason why complaints in respect of normal police operations should not be properly investigated as a result of this legislation. There is no statutory obstacle—in this Bill or the 1989 Act—which would prevent the Security Service from co-operating with an investigation by the police into a complaint against a police officer, arising from a joint operation.
The amendment is also concerned with actions undertaken "on behalf of police officers" but the statutory remit of the Police Complaints Authority, as set out in the Police and Criminal Evidence Act 1984, restricts it to investigating complaints against police officers. It does not permit the investigation of complaints against actions "on behalf of police officers, and, as I have already suggested, it would not be appropriate to apply a complaints mechanism, drawn up with the powers and procedures of the police in mind, to the Security Service when its officers operate in different contexts and without any executive powers. I would therefore suggest that this subsection is unnecessary.
The second subsection proposes to create a link between the Police Complaints Authority and the Security Service Tribunal so that if a complaint is submitted to the police and they decide it is worthy of investigation but find that it actually relates to a member of the Security Service, the complaint can be sub-contracted to the Security Service Tribunal for investigation. Again, I can see why this may appear attractive, but I think the existing procedures work very well.
At present we rely on procedures which have been tailored to suit the powers available to those officers and the contexts within which those powers are applied. In the unlikely scenario that a person submits a complaint against the police which actually relates to a member of the Security Service, the police will decide whether the complaint merits recording and, if it does, they will investigate it. If they then conclude that it does not relate to the conduct of a police officer, they will explain to the complainant what other avenues of complaint are available. This will include the Security Service Tribunal. All police forces have been issued with leaflets explaining the work of the tribunal and I understand that these leaflets will be revised and reissued in the light of the present Bill.
I have already pointed out that the Security Service co-operates with the police and other agencies under its existing responsibilities. Precisely the same hypothetical situation could arise in respect of complaints from members of the public but there is no evidence that this has caused any problems.
Members of the Security Service have no executive powers. Where executive action such as an arrest is required as a result of an investigation—whether it is a counter—terrorism investigation or a serious crime-related investigation—this will be for the police. Members of the Security Service are not going to be patrolling the streets and coming into regular contact with members of the 1516 public as a result of this Bill. Most complaints about misconduct on the part of police officers arise from this type of situation.
At Second Reading, the noble Lord, Lord Allen of Abbeydale, whose name has been mentioned in this debate, raised the hypothetical scenario of a defendant claiming that drugs had been planted on him by an officer, who was actually from the service. Let me assure the Committee that if a complaint relates to alleged criminal conduct by a member of the Security Service, the police will be the appropriate agency to carry out the investigation. Members of the Security Service are fully subject to the law of the land.
The amendment does not make clear whether the complainant would be informed of the involvement of the Security Service Tribunal. If the complaint is passed in secret to the tribunal for investigation, this would compromise the integrity and independence of both bodies, without offering any gains in terms of transparency. We believe that complainants have a right to know which body is to investigate their complaint.
If, however, the complainant is informed that the complaint has been passed from the Police Complaints Authority to the Security Service Tribunal, this would confirm that the Security Service has been involved in the case. Clearly this could be exploited by potential targets to secure information about the activities of the service. I refer back to the points made by my noble friend Lady Park of Monmouth who I know is concerned about exposing people who are working in this sensitive area. It would be unfortunate if it was confirmed unnecessarily that an officer was a member of the Security Service as a result of an administrative procedure, thereby potentially compromising its future effectiveness in other capacities. This would also undermine the present procedures, which have been carefully constructed to protect sensitive information.
For those reasons I would suggest that this Bill is not going to generate the kind of difficulties which a number of noble Lords appear to anticipate. There is no evidence that the kind of problems that some of your Lordships foresee arise in connection with the Security Service's existing functions. Perhaps I may borrow a phrase from the noble Lord, Lord Knights, and say that I believe that much of this is more imagined than real.
The Security Service and the police have a long history of co-operation in the counter-terrorism field. Although they work together, their officers are subject to different but parallel complaints procedures. That has not caused problems either for the agencies involved or for the public, and we see no reason to depart from it in regard to the service's new function.
The noble Lord, Lord Knights, referred to the nature of complaints against the security services. Again, as I understand it, the substance of complaints submitted to the Security Service Tribunal is entirely a matter for the tribunal which does not disclose details of individual cases.
The noble Lord, Lord Rodgers of Quarry Bank, asked what happens if the police and the Security Service working together give rise to a complaint. They will be subject to different complaints 1517 mechanisms. As I have already said, that already happens when the Security Service works with the police in the area of counter-terrorism. It also happens when police and Customs work together. It does not cause problems and there is no reason to assume that problems will arise in the new area.
I have been asked about the length of time the procedure will take if a complaint is lodged with the police. It will, of course, take as long as is needed. In the first instance, we hope that the procedure for determining whether it is a proper complaint that needs to be investigated will take no more than a few days. If it is determined to proceed with the investigation, the investigation will then take as long as is needed.
The noble Lord, Lord Rodgers, also referred to the tribunal leaflet. I shall, of course, send the noble Lord a copy of the leaflet. It is specific to the Security Service. My right honourable friend in another place said that the police would supply complainants with copies of all the relevant leaflets—they will all have their own leaflets—with respect to each of the services, such as those covering complaints against the Security Service and Customs and Excise.
Again, I shall have to preface these remarks with "as I understand it" because the noble Lord, Lord Harris of Greenwich, referred to what will happen if a complaint relates to, say, three members of a police force and one member of the Security Service. I think that I am right in saying that if it is a single complaint, either naming or not naming those four theoretical members who are the subject of the complaint, and if that single complaint is substantiated and if any of the police officers is involved, the complaint will be addressed by the Police Complaints Authority. If it is discovered that the three police officers—or however many were involved—were not party to the maladministration or wrong conduct that is the subject of the complaint, the other procedure will apply and the complainants will be given all the information about the other "complaining" authorities and will be able to resubmit the claim, if they want to, to whichever other agency is deemed to be the most relevant.
My noble friend Lady Park of Monmouth referred to the Security Service giving evidence in court. The decision on who needs to give evidence in any particular case is for the prosecuting authorities and prosecuting counsel. In recent years, members of the service have given evidence on a range of issues in many trials, including counter-terrorist cases, where that is necessary to ensure that all relevant evidence is before the court. We have no reason to believe that that should not continue to be the case. It will not affect operational effectiveness. It must be remembered that members of the Security Service have no executive powers. Where intelligence work by the service leads to executive action this will require co-operation with the appropriate law enforcement agency, who will give evidence as normal. This is likely to limit the need for members of the Security Service to give evidence. Officers of the police and security services are subject to the complaints procedures appropriate to their respective organisations.
1518 Both procedures work well in their respective contexts, and we should not confuse the two. I hope therefore that the amendments will not be pressed.
§ Lord Harris of Greenwich
As I understand the reply of the noble Baroness, a deputy chief constable pursuing an allegation of misconduct by members of his force who finds that one of the people against whom the complaint is made is a member of the Security Service, and, in his view, it is an allegation of criminal misconduct, is to refer the matter to the Director of Public Prosecutions. The director would then be in the difficult position of having to decide whether or not to pursue the matter on public interest grounds. I understand her answer. I am not wholly clear what happens if it is an allegation of grossly improper behaviour short of criminal behaviour.
Let us assume that the complainant goes to a police station, makes a complaint and the police begin to investigate it. As I understand it, the deputy chief constable still has responsibility for investigating that complaint, albeit part of the complaint relates to a member of the Security Service who is then interviewed by the police to find out whether or not he has behaved improperly. No doubt either today or in correspondence the noble Baroness will tell me whether or not what I say is correct. If he takes the view that there has been improper behaviour by the police officers he will prefer disciplinary charges against them which will be considered by the Police Complaints Authority and the tribunal at which the chief constable will preside. At that stage the officers will have legal representation if there is any question of either dismissal from the service or being reduced in rank. Those are the present arrangements.
As part of their defence, the police officers might say that Mr. X., a member of the Security Service, was the person who undoubtedly behaved improperly. Referring to the question asked by the noble Baroness, Lady Park, presumably in that situation the member of the Security Service would or might be obliged to give evidence before the deputy chief constable in order to validate the allegations made on behalf of the deputy chief constable. Presumably, it would mean that the identity of the officer would become known even though the complainant might be a person with a formidable criminal record. I shall be grateful if at some stage the noble Baroness confirms that what I have said represents the truth of the matter. From my knowledge I believe that it is an accurate picture.
What happens to the member of the Security Service whom the police officers say has behaved with gross impropriety? Presumably, his case could be put before the Security Service Tribunal. The police officers, who perhaps had been acquitted, might be asked to give evidence against the officer. I shall be grateful if the noble Baroness between now and Report stage can tell me whether what I say represents the Government's belief as to the accuracy of this matter.
The noble Baroness said that there would be no problem because the police and Customs work together. That is perfectly true. But the major distinction is that Customs and Excise is not a secret organisation. There is no question of trying to throw a cloak of secrecy over 1519 the identity of a member of Customs and Excise because, by definition, it is a publicly accountable organisation. Members of Customs and Excise are known. There is nothing like the climate of secrecy which exists in the Security Service. In my view, this issue is fundamental. But it will not arise in the immediate future. At first there are to be only 16 to 20 members of the Security Service involved in this work. But once the legislation is on the statute book there will be the possibility of a larger number of members of the Security Service becoming involved. I believe that all concerned deserve a clear explanation as to what will happen.
§ Baroness Blatch
I shall read carefully what the noble Lord said and write to him. I will make available my response to all Members of the Committee who have an interest in this matter. When a person complains to the police authority the matter will be dealt with as a complaint to that authority. If, either at the initial stage, or subsequently, it emerges that a member of the Security Service has behaved illegally it will be dealt with. Whether it comes to light in the course of the investigation or in any other circumstances, that person will be subject to the law and the law will take its normal course. The Crown Prosecution Service will make a determination as to whether to proceed with charges.
If, however, in the course of investigating a complaint to the police authority it is discovered that the policemen involved in the particular case are not involved in any impropriety but it is just conceivable that members of the Security Service are, it will be dealt with as a complaint to the police authority. The authority will determine whether or not there is a case to answer. In this hypothetical situation there would not be a case to answer. The complainant will be invited to seek redress for his complaint elsewhere. All of the information as to how to do that and the range of bodies to which the complainant can go to pursue the complaint will be made available. If the particular complaint involves both the police and members of the Security Service but the complaint is proved on the basis that someone in the police authority has caused some grievance to the complainant, the complaint will be upheld and it may or may not involve invoking the Security Service. But the noble Lord raised a number of issues. I believe that it would be wrong for me to try and answer them in any more detail. I will write to the noble Lord.
§ Lord McIntosh of Haringey
This has been a most interesting debate, notably for the intervention by the noble Lord, Lord Knights, with his knowledge of the police service, and the noble Baroness, Lady Park, with her knowledge of the Security Service. Members of the Privy Council Bench who expressed approval of those interventions should reflect that both speakers were considerably more radical in their response to the Bill than might at first have appeared.
The Minister has no difficulty in persuading me that my amendment is defective and that it should be withdrawn. Although her answers go some way to explain the procedures which will take place on this 1520 complicated issue, they do not go all of the way. What happens if a member of the Security Service commits an illegal act is quite clear. We can be agreed about that. But as to how the public are to know where their complaints should lie and as to the degree of collaboration between the Security Service Tribunal and the Police Complaints Authority, I heard a number of encouraging remarks by the Minister but a rather discouraging remark at the end. I believe that it is best that I read carefully what she said and, in the meantime, beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ 5 p.m.
Lord McIntosh of Haringey moved Amendment No. 4:
Page 1, line 19, at beginning insert ("After consultation with the Chairman of the Intelligence and Security Committee established under section 10 of the Intelligence Services Act 1994,").
§ The noble Lord said: The amendment, which is in the same form as other amendments, is perhaps related but it deals with a separate issue. It deals with the issue of the designation, for the purposes of this clause, of the person who is, as we understand it, to be the director-general of the National Criminal Intelligence Service. What we propose in the amendment is that such a designation shall not take place unless the Chairman of the Intelligence and Security Committee, which was set up under the Intelligence Services Act 1994, is also consulted.
§ We appreciate the difficulties which the Government have in that they have not yet found it possible to draft the legislation which will give statutory authority to the NCIS and the NCS. It would of course have been easier to understand the Bill if that had not been the case—if we had not had to tread delicately around this designation rather than having it named directly. But whether it is yet statutory or not, surely this is a sufficiently important role in triggering the intervention of the Security Service in support of the activities of police forces for the Intelligence and Security Committee, which has the function of parliamentary scrutiny of the Security Service, to be involved. Parliamentary scrutiny of the Security Service, if it is to be complete, has to cover also the functions which are provided for in Clause 1. It would seem logical and natural for Parliament to be involved in this, perhaps minimal, but nevertheless significant way. I beg to move.
§ Lord Renton
I have some sympathy with the noble Lord over this amendment. It is important that we should ensure that there is co-operation and no conflict between that important body mentioned in the Intelligence Services Act—namely, the Intelligence and Security Committee—and the police. It is rather significant that, although this is a Bill dealing with the functions of the Security Service, there is to be under Clause 1(3) a chief officer of police to be the responsible person for ensuring that things work smoothly. It may be that the Secretary of State, on advice from the Home Office, would in any event consult the chairman appointed under Section 10 of the 1994 Act, but it is a 1521 point that should somehow or another be covered. It seems to me that the amendment is appropriate, but I naturally wish to hear what my noble friend the Minister has to say.
§ Lord Harris of Greenwich
The only anxiety I have on this question is why this issue has not been addressed within the Bill. The Home Secretary has made it clear that the person he intends to designate—f officer of police to whom the noble Lord, Lord Renton, has just referred—will be the director-general of the NCIS. I believe that that is the correct person to have that responsibility. It is the only way of ensuring police primacy.
What I still find extremely difficult to understand is why that matter has not been addressed on the face of the Bill. After all, we are introducing for the first time the Security Service into sensitive areas of police operations. That being so, it seems strange that we are being asked to pass a Bill which gives new authority to the Security Service but does not clearly define, on the face of the Bill, the senior police officer who will have that critical role. I find that disappointing. I still hope that on Report or at subsequent stages that matter will be dealt with.
§ Lord Knights
The point which interests me in this matter is not so much the inclusion of the commissioner or the Security Service people in the appointment of the officer who is to be the link but, as has already been said, that the Home Secretary has already indicated that it will be the officer who is in charge of the NCIS. That officer, under present circumstances, as I understand it, cannot be a chief officer of police. He can only be a former chief officer of police, because he will give up his command as a chief constable when he takes up that post.
If the Home Secretary has already decided who that will be, there does not seem to be much point in consulting someone else before he is appointed. He is the only one who can be appointed. There is no choice if that is where it is to lie. But the whole situation raises, and it will raise later when the legislation to make the NCIS a statutory body comes before this place, the question of what supervision there should be of its activities. At that stage we shall need to consider whether similar arrangements should not be made for a committee to supervise its work in the same way as the work of the security services is being supervised now. That is where the real arguments will come as to the position of the officer in charge of the NCIS.
§ Baroness Blatch
Although superficially attractive, I have to confess that I am somewhat puzzled by the intent behind this amendment. It seems to me that it would not enhance the Bill and runs the risk of damaging the standing of the Intelligence and Security Committee.
Clause 1(2) requires the director-general of the Security Service to agree arrangements with a designated person so as to ensure that the activities of the Security Service in connection with its new serious crime function are co-ordinated with those of the police and the other law enforcement agencies that it will be 1522 supporting. That is an important safeguard which is designed to ensure that in the serious crime field the Security Service acts only in a supporting role and does not act independently. The agreed co-ordination arrangements will cover questions such as tasking and how the Security Service's contribution can best be meshed with the work in this field that others are already doing.
My right honourable friend the Home Secretary has made it clear all along that it is his intention to designate the Director-General of the National Criminal Intelligence Service (NCIS as it is known) as the person with whom the Director-General of the Security Service must agree these co-ordination arrangements. That reflects the key role which all the players have agreed that NCIS will undertake and which I outlined in opening the Second Reading debate on this Bill. Indeed, ideally we should have liked the fact that the designated person will be the Director-General of NCIS to be specified in the Bill. Unfortunately, that is not possible since NCIS currently has no statutory footing. The Committee may be aware that part of the next element of the Government's package of measures, which I have already made clear this afternoon, against organised crime will be to put NCIS on a statutory footing.
The noble Lords, Lord Harris of Greenwich and Lord Knights, made the important point that some of the detail of the supervisory arrangements will have to be thrashed out during the course of that next piece of legislation. Nevertheless, despite, any uncertainty in drafting terms that may exist, the Government have been in no doubt that the Director-General of NCIS will be the designated person. So far that proposition has received all-party support and I am surprised that the noble Lord, Lord McIntosh, and others should call it into question by suggesting that prior consultation is required before the designation process can take place.
I am also concerned that the noble Lord should be seeking to involve the Chairman of the Intelligence and Security Committee in this way. The Intelligence and Security Committee exists to,examine the expenditure, administration and policy",of the intelligence agencies. It is an all-party group of senior parliamentarians and my noble friend Lord Blaker is a distinguished representative of this place.
One of the great strengths of the Intelligence and Security Committee is that it is independent of both the Government and of the intelligence services whose activities it oversees. It can therefore be relied upon by the Members of another place and of this place to carry out its duties effectively and without fear of being compromised. I have every confidence in the ability of the Chairman of the Intelligence and Security Committee, Tom King, MP. His integrity is beyond question.
Nevertheless, I question whether there is not a danger that the independence of the committee would be called into question if it were to become involved in operational issues which could have a direct bearing on the work of the Security Service. Indeed, a much more likely scenario is that the committee will want to 1523 examine the effectiveness of the Security Service's work in its new function, including the co-ordination arrangements. We believe that seeking its advice or influence in that appointment would run the risk of compromising its independence.
For that reason, and on the basis of the firm undertaking which has been given and which I am happy to repeat—that the designated person will be the Director-General of the National Criminal Intelligence Service—I hope that the noble Lord will not press the amendment.
§ Lord McIntosh of Haringey
My Lords, perhaps I make it clear from the outset that I am not casting doubt—indeed, my party has never cast doubt—on the intention of the Home Secretary to appoint the Director-General of the National Criminal Intelligence Service as the designated person under Clause 1 of the Bill. I cannot understand how the Minister read that into what I said or into the amendment. We accept that the appointment will be that person.
However, there will be future appointments, and we suggest that since the role of the Director-General of the National Criminal Intelligence Service is expanded by the Bill—in other words, in addition to running his criminal intelligence service he also has the responsibility, which is laid down in Clause 1, of defining arrangements for co-ordinating the activities of the service in pursuance of Section 1(4) with the activities of police forces—there is therefore a Security Service role as part of that person's terms of reference. It seems a minimal involvement of the parliamentary scrutiny of the Security Service which is provided by the Intelligence and Security Committee for the chairman of that committee to be involved in the appointment. That does not mean that the chairman will be involved subsequently in the activities of that committee; only that when the appointment is made, parliamentary involvement and the role of the Security Service should be recognised—
§ Lord Renton
The noble Lord has gone a bit further than his amendment. It properly refers to consultation; the Secretary of State should not be required to do more than consult. To go into the matter of greater responsibility is going beyond his amendment.
§ Lord McIntosh of Haringey
I do not intend to go beyond my amendment. It is a minimal amendment. There is a small amount of parliamentary involvement in a very hierarchical way. Only the chairman is involved and not his committee; and he is involved only in a consultative capacity; and he is involved only at the time of the appointment of the designated person.
I am surprised that the Minister reads so much into my small amendment, but it is not one that I wish to press at this time. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ 5.15 p.m.
Lord McIntosh of Haringey moved Amendment No. 5:
Page 1, line 23, at end insert—
("(3C) The Secretary of State shall by order appoint a special police authority to exercise the relevant functions under the Police and Magistrates' Courts Act 1993 in relation to the arrangements made under subsection (2)(c) above."").
§ The noble Lord said: Amendment No. 5 refers to the issue raised by the noble Lord, Lord Knights, in addressing the previous amendment. I agree that the more important matter is to which police authority the National Criminal Intelligence Service, and indeed the national crime squad, should be responsible.
§ In our lengthy debates on the Police and Magistrates' Courts Bill 1994 we secured considerable changes to the original government proposals. We secured that there should be a continuation of the tripartite system of control of the police which had served us so well. In every respect—except the control of the Metropolitan Police, where unfortunately the Government changed their mind—the Government agreed that we should continue with the tripartite system, with local authority involvement and with local responsibility for the objectives and conduct of police forces in this country. For that reason, we believe that there should be a comparable body for the National Criminal Intelligence Service and the national crime squad, particularly as the director-general is to be the guardian at the gate, so to speak, for the intervention of the Security Service in policing matters.
§ I believe that even the Home Secretary now accepts that there is a need for a body to which NCIS should report and that is one of the reasons why legislation has not been brought forward to provide the statutory basis for NCIS and why to that extent the Bill is incomplete. In the amendment I have referred to the body as a special police authority, without spelling out in detail its composition. However, I believe that it should include representatives of chief police officers and local police authorities so that the national police work is tied back into the systems and accountability of local police activity.
§ Clearly, this is a probing amendment. If it found favour with the Government, no doubt there would have to be a considerable amount of drafting in order to establish the constitution and powers of such a special police authority. However, I hope that by presenting the matter in this simple way it raises the issue adequately, meets the longer term objectives of the Home Secretary in this package of legislation and finds favour with the Government. I beg to move.
§ Lord Renton
I am relieved to know that this is only a probing amendment because it is defective. It refers to the Police and Magistrates' Courts Act 1993, but in fact it was passed in 1994. I say with respect that, in any event, the idea of having a police authority imposed upon the machinery already envisaged under the Bill is utterly inappropriate. In Section 4 of the 1994 Act, which amends the 1964 Act, the noble Lord will see 1525 elaborate arrangements for the membership of police authorities and their appointment. I cannot imagine that his proposal will find favour with the Government.
§ Baroness Blatch
Again, I understand the noble Lord's desire for the work of the Security Service in pursuit of its new function to be accountable, but this amendment seems to be a very strange way to pursue that aim. In any case, I believe that the present accountability arrangements governing the work of the Security Service are highly effective.
The amendment proposes that there should be a special police authority to oversee the co-ordination arrangements which will govern the Security Service's support for the law enforcement agencies. By way of clarification, it refers to the relevant functions under the Police and Magistrates' Courts Act, whether 1993 or 1994. I am at a loss to see how the functions under that Act would be relevant. The primary objective of a police authority is to secure the maintenance of an efficient and effective police force. In doing so, the Police and Magistrates' Courts Act refers to the police authority's duty to set objectives in consultation with the chief constable and local people and to issue local policing plans and annual reports. Those functions are all appropriate to maintaining a police force with an essentially local focus. They do not seem appropriate to the work of the Security Service.
The Security Service is a different type of organisation and it has its own systems of accountability. Ultimately, the Security Service is accountable to the Home Secretary, through the Director General. By way of independent oversight, we have established the Intelligence and Security Committee, a committee of distinguished parliamentarians including my noble friend Lord Blaker, who represents your Lordships' House. The ISC will certainly be able to oversee the Security Service's new function.
Under the new function, the Security Service will be supporting police forces and law enforcement agencies. All police forces are accountable to their own police authority and organisations like Customs and Excise have their own accountability arrangements. I do not think it would be appropriate for there to be a new police authority duplicating these existing accountability arrangements for occasions when the Security Service is supporting a law enforcement agency in pursuance of its new function.
The other key organisations in the Security Service's new role is of course NCIS. The co-ordination arrangements will have to be agreed with the Director General of NCIS, as the designated chief officer, and NCIS will perform a central role in co-ordinating the contributions of the various agencies. The noble Lord, Lord McIntosh, may have views on the accountability arrangements which would be appropriate for NCIS but, I fear, this is not the occasion to pursue them.
It is the Government's firm intention to bring forward legislation placing NCIS on a clear statutory footing, with greater independence from the Home Office. I assure the Committee that we shall address the issue of oversight arrangements as an integral part of that legislation and we are aware of the need for public 1526 accountability. But there are complex issues involved and we are still developing our proposals in consultation with the police and other interested parties. Nevertheless, we hope to bring forward the legislation as soon as possible.
In the meantime, we want to ensure that the co-ordination arrangements which will govern the Security Service's new role are not unduly bureaucratic and do not stifle operational effectiveness. The arrangements will cover practical issues such as mechanisms for ensuring the visibility of Security Service operations; mechanisms for sharing information; and the role of groups such as the Drugs Trafficking Strategy Group. This does not justify the setting up of a new police authority in an oversight role. It would be cumbersome and inappropriate. Instead we should rely on the existing accountability arrangements, which are tailored to the needs of each organisation. In the case of NCIS we have given clear commitments that we will place the organisation on a statutory footing with revised oversight arrangements and therefore I ask the noble Lord to avoid pre-empting that piece of legislation now.
§ Lord Harris of Greenwich
The noble Baroness referred to placing the National Criminal Intelligence Service on a statutory basis. As she is aware, a number of us have expressed regret during our debates this afternoon that that is not being done in this Bill. I wonder whether there is any possibility of the Government reconsidering this matter because it would relieve a number of us of our anxieties in that regard.
We heard what the noble Baroness said about the Director-General of NCIS being the former chief officer who will be appointed to the role which had been referred to by the Home Secretary. But it would be far better to deal with NCIS and place it on a statutory footing in this Bill. I still wonder whether it is possible to do that on Report or at Third Reading.
The noble Baroness has told us on a number of occasions that the Government will be bringing forward their proposals. But the difficulty is that the new Session of Parliament will begin in October or November of this year and the Government will then have a life of, at the most, five months to put through the legislation. The Minister refers to a package of measures but, as she will know, a part of that package of measures is highly controversial. The prospect of such legislation reaching the statute book, unless this issue is dealt with in isolation, is remote in the extreme. Why is that issue not dealt with in this Bill?
§ Baroness Blatch
At the risk of being repetitive, because I have said this a number of times this afternoon, discussions are continuing with all the relevant agencies involved with this matter. However desirable it might have been—and I have said that it would have been desirable—to deal with the matter in this Bill, it is inappropriate to deal with such an important matter by amendment at this late stage in the progress of the Bill. It has already passed through another place and is now completing its Committee stage in this Chamber. Therefore, only two stages remain. I believe that it would be a mistake to introduce 1527 that provision without it being properly thought through. I hope the noble Lord will accept that we intend to deal urgently with the matter and that it will be the next piece of legislation to be dealt with in this package of measures.
§ Lord McIntosh of Haringey
The Minister really confirms all that I was saying and all that I have been thinking about this issue. Clearly with an amendment of this kind to this Bill as drafted, I could do nothing other than propose a special body which will have the functions referred to in Clause 1.
Equally clearly, if the designated person is to be the director of NCIS then the work of the National Criminal Intelligence Service will be subject to the same police authority. But since it does not exist, I could not propose that in an amendment.
The Minister seeks to make a point about the fact that some of the functions under the Police and Magistrates' Courts Act 1994—and I acknowledge with thanks the correction of the noble Lord, Lord Renton, are not appropriate to this purpose. I did not say that they were. The amendment refers to the "relevant functions" under the Police and Magistrates' Courts Act.
We are in a difficulty which is entirely of the Government's making. Because they have not been able to prepare the legislation which surrounds this Bill and makes it make sense, we cannot consider even the most modest provisions of this little Bill in the way that we should if that legislation were before Parliament. For that reason, of course my amendment is very limited and does not do all that we would wish it to. But the acknowledgement by the Home Secretary, confirmed by the Minister today, that there will have to be a police authority of some kind when the statutory basis for NCIS is legislated for is welcome. I hope that it is clear that that will include the functions that are laid down in Clause 1. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Clause 1 agreed to.
§ Clause 2 [Warrants]:
§ On Question, Whether Clause 2 shall stand part of the Bill?
§ Lord McIntosh of Haringey
In dealing with Clause 2, we come down to earth with a bump because we are now concerned with one of the very many practical issues which will arise from the implementation of Clause 1; that is, the issue of warrants. If it is of any comfort to the Government, the complexity of the arrangements for warrants confirms the difficulty which I can see that they are experiencing in drafting legislation to deal with the other issues which are raised by Clause 1.
When we deal with warrants we are in a very difficult situation indeed. It is proposed that the existing warrants used by the Security Service, which are property warrants and interception warrants, which at present cannot cover action in relation to property in the British Isles shall be permitted for the Intelligence Service and 1528 the Security Service if the activity concerned is, as is now defined, for the prevention or detection of serious crime.
That raises two very important questions which the legislation shies away from. The first issue is in relation to what is the present statutory basis for the use of interception warrants by the police. When this matter was debated in Committee in the other place, it was clear that there was a considerable amount of embarrassment on the part of the Minister concerned because he could not define the statutory basis for the use of interception warrants used by the police. It is quite clear that they are used. However, because of a lack of statutory justification, there is the possibility that a policeman using an interception warrant—bugging, in other words—could be subject to prosecution or pursuit on a civil trespass. Clearly something has to be done to provide a statutory basis for the powers which the police have, although they do not necessarily use them on a statutory basis.
That is not the case for property warrants where the police have to have a judicial trigger. They have to apply to a magistrate, or under certain circumstances to the High Court, to obtain a property warrant. What the Government are proposing in this Bill is a rather curious approach. Instead of rationalising and justifying the police powers—which is what would surely be the right way to approach the matter because that way Parliament and the people would know what the powers of interception and property warrants are—the Government are proposing to provide a statutory basis for interception and property warrants on the part of the Security Service, not in line with police powers but in line with the existing Security Service powers as they apply outside the British islands or the United Kingdom. That raises huge problems because there is no judicial trigger; there is only an executive trigger in the sense that the warrant is granted by the Secretary of State rather than by the judiciary. That immediately raises questions of the propriety, in civil liberties terms, of having the Executive able to authorise bugging by persons necessarily unknown in a way that the police are not able to do.
Therefore, there are two issues that we have to face. First, is there in Clause 2 an extension of the powers of anyone—the police, the Security Service or anyone else—to bug and to plant bugs in the homes, places of work or wherever of the people of this country? If that is the case at the very least we ought to know about it and the extent to which it is proposed that it should happen and we ought to know what safeguards are proposed. Secondly, does the wording of this clause raise the possibility of powers, as between the police and the Security Service, which are inconsistent? In other words, do they have powers of investigation, of bugging and of access to property in pursuit of the same case of detection or prevention of serious crime which are different from each other? If that is the case, I should have thought there is something rather seriously wrong. The issue of whether these powers are being exercised differently by different people or whether there are different powers being exercised by different people 1529 who are exercising for the purpose of this Bill the same functions ought to be out in the open. We ought to know where we stand.
I apologise to the Committee for being able to raise this matter only on a clause stand part debate. I know that in the House of Commons it is always considered possible to have new clauses which raise completely new issues. If I possibly can I prefer to amend the wording of the Bill in order to improve the effect of the Bill. Any Member of the Committee who looks at Clause 2 will realise how difficult it is to change the wording when it is itself an amendment to the Intelligence Services Act 1994.
What we want from Clause 2 is an assurance that the security services have no powers which are not available to the police and that there is congruity between the powers available to the police and those available to the Security Service. If that means a better statutory basis for police powers, so be it. We want an assurance, above all, that we are not, by the back-door and by inference rather than by deliberate legislation, extending the powers of the law enforcement agencies to plant bugs in any of our homes or places of work, or indeed to extend the powers of property warrants. I am not saying that there are not circumstances in which the people and Parliament might not give those powers, but they ought to do so explicitly, clearly and knowing what is involved. Clause 2 does not provide that. It does not provide any answers to those important and difficult questions. I suggest to the Committee that unless the Government have some clear and new answers to those problems, Clause 2 ought not to stand part of the Bill.
§ 5.30 p.m.
Lord Campbell of Croy
As the noble Lord, Lord McIntosh, pointed out, I raised a subject connected with warrants on his Amendment No. 2 because I was keen to make sure I did not miss an opportunity to do so. Of course I did not know what particular point or points the noble Lord was going to raise in his proposal to remove Clause 2 altogether. I wish simply to add to what I said earlier.
The noble Lord, Lord McIntosh, is, of course, referring particularly to property warrants, which are the important ones in this Bill. I was referring to the warrants which have been issued over many years to police, as well as to the Security Service, for telephone tapping and interception of postal communications. I made reference to the latest report from the commissioner, the noble and learned Lord, Lord Nolan, who was present a few moments ago. His report of 1995 was issued only last week. The incidents which he reports on concern only telecommunications and letters. He provides figures in the summary at the end of his report. He lists interceptions only in the categories of telecommunications and letters. A total is given for the two categories.
As far as I know—I am sure this is the case—the noble and learned Lord does not report on what are known as bugging incidents; that is, the surreptitious placing of eavesdropping devices in premises to enable conversations to be overheard from a distance, night and 1530 day, and either to be listened to by an individual or recorded. As I said before, I think that is far more offensive and intrusive than telephone tapping because anyone who picks up a telephone and has a confidential conversation must know that he could be listened to by anyone quite by chance. Personally I would not mind anyone listening to any telephone conversation that I have had for as long as I can remember because I would never use a telephone to speak of any matter which I thought was confidential or which might be indiscreet concerning the reputations of other people.
The report which I am discussing is issued every year. I have just referred to the most recent edition. As far as I can see, it does not deal with bugging; that simply is not mentioned in the report at all. It is an area which needs considerable, careful consideration, clarification and, if necessary, legislation. At Second Reading, my noble friend indicated that the issue would be dealt with at the next stage of the legislation.
I have assumed that bugs are an important part as regards property warrants. The noble Lord, Lord McIntosh, referred to the Committee stage in another place. It did not become clear whether bugs were used already by the police under administrative arrangements. As I said earlier, the interception of telephone communications has been authorised and accepted by Parliament, to my knowledge for at least 30 years. As Secretary of State, I was signing warrants, or withholding my signature, nearly 30 years ago. Therefore that situation has been accepted. It seems strange that that aspect should have been regularised in such intimate detail. Yet nothing has so far been done about placing eavesdropping devices in premises.
I simply speak further on a subject which I raised briefly on Amendment No. 2. It is an important matter to which an eminent member of the judiciary drew attention in recent days.
§ Lord Browne-Wilkinson
I join in the degree of anxiety that has been expressed on Clause 2. I cannot pretend to have my mind round all the ins and outs of the powers currently exercisable in relation to the surveillance of private property, the entry of private property, tapping of telephones connected to British Telecom, tapping of telephones not connected to British Telecom, the long-distance bug, or any of those matters.
In my experience, the present situation is extremely confused. So far as I know there is no statutory authority currently sanctioning the invasion of premises by police to plant bugs. A case is pending in the Judicial Committee of the House of Lords where exactly that point is at issue.
I rise on this occasion because apparently I have either the wrong end of the factual stick or I have the wrong judgment. I believe that what is being proposed in Clause 2 of the Bill is a major constitutional shift. There was a famous case in the eighteenth century called Entick v. Carrington which decided that the Executive could not enter premises, search and remove goods; it was not part of its function or rights. As I read the Bill—I speak subject to correction—what is happening is that as part of the process of introducing 1531 the security services into the prevention and detection of crime, powers—people accept, albeit reluctantly, that they have to be exercised in that extremely tricky half-light of espionage—are being brought in to be exercised by the security services, not in the context of espionage but of ordinary police duties. That seems a very serious matter. If the police, or any law enforcement officer, are lawfully to enter and search, ever since Entick v. Carrington a search warrant has been required, granted by an independent judge or magistrate.
As I read the Bill—again I ask for information as much as for anything else—under the arrangement in the Bill an officer of the Security Service (the Minister says that he has no executive power but I am not sure what that means) obtains a warrant that is not signed by a judge or a magistrate but by the Home Secretary or someone to whom that power is delegated. That officer can enter, search and remove things from a private house. The policeman with whom he is co-operating can do no such thing. He requires a warrant.
I hope that the Minister will indicate to us that my fears about what is being done under the meritorious concept of seeking to deal with organised crime is not treading on those matters which we have habitually regarded as the Englishman's basic freedom; namely, the safety of his home.
As regards bugging, we are in fairly advanced days. One does not need to get on to the premises. One sets up some gear 100 yards away; windows vibrate and speech is heard. There are very sophisticated arrangements now in place whereby what is going on inside a man's or woman's house is capable of detection from outside.
I hope that this matter will receive careful consideration before the Government confer on the security services wider, different and non-independent powers to invade the privacy of the Englishman's home. It may well be that I have the Bill wrong. I look forward to finding out why my fears are not realities.
§ 5.45 p.m.
§ Lord Harris of Greenwich
I find myself in substantial agreement with what the noble and learned Lord, Lord Browne-Wilkinson, said. I believe that all of us accept that in the investigation of serious crime intercepts can be of critical importance in a series of cases—blackmail, kidnapping, terrorist offences and so on.
The noble and learned Lord referred to a case before our Appeals Committee. I should not dream of referring to it by name in case that caused displeasure to the noble Baroness, Lady Blatch. This issue will be addressed in the relatively near future. It is a matter of critical importance. Ministers should have no doubt of the constitutional importance and other implications of this matter.
It seems wholly unsatisfactory that we should have one system of arrangements for the Security Service and totally different arrangements for the police, notwithstanding the fact that the Security Service and 1532 the police will be working together as colleagues in exactly the same operation. I do not see how one can justify that.
I find it a matter of deep regret that on an issue of this kind—I repeat that it has consistently been drawn to the attention of the noble Baroness's department by chief officers of police—this matter is not being addressed adequately within the Bill. I do not see how members of the two organisations, who we assume will be working closely together as colleagues as a result of the passage of the legislation, will have totally different arrangement as regards intercepts.
What can conceivably be the basis of that judgment so far as concerns Ministers?
§ Lord Knights
Perhaps I may first quote from a report of a Home Affairs Committee in another place on Organised Crime. It was published in July 1995. At paragraph 48 it states:We consider that taken as a whole it"—that is to say organised crime—is a cause for serious concern. There is no doubt that, while the level of such crime in the UK may be lower than in some other countries, it is nevertheless substantial and probably growing…We conclude that the Government and the police will need to take effective pre-emptive measures if an irretrievable expansion of organised crime in this country is to be avoided".The Government have responded to that by saying that the Security Service shall play some part in dealing with that serious matter. If the position is as serious as that, and no one has suggested that it is not, there can be no doubt that there are occasions when clandestine and covert arrangements are essential if the necessary intelligence on which to base further practical operations is to be obtained.
Parliament should recognise that and that we cannot use kid glove measures to meet the dangers which this type of crime presents, not only to society as a whole but to the individual officers involved in it. Only recently it was known that a police officer was killed when seeking to obtain information, in that case not within the premises but while keeping observation outside.
As I understand it, the clause seeks to correct a situation which exists because of the present legislation dealing with the Security Service. Security services under the existing statute can bug premises—and that is what we are talking about—with a warrant from the Secretary of State in the discharge of their responsibilities, but not in furtherance of the responsibility or authority which they have to pass criminal information to the police. Now that they are to be involved in seeking actively to develop criminal intelligence, it follows that they will seek to bug premises.
It may be that today it is not so essential to enter premises in order to bug them and that it can be done from outside. I am not technically minded enough to be able to comment on that, but it would surprise me if the number of occasions on which it is essential to enter premises to bug them is anything more than rare.
Be that as it may, the police do not have such authority at the moment. If any of us is confused, there is a difference. We are not talking about searching 1533 premises for which search warrants must be obtained from magistrates or courts. We are talking now about bugging referred to in the famous book: Burgling and Bugging Across the Country. In 1984—a long lime ago so my memory may not necessarily be accurate—the police were given guidance by the Home Office as to the way in which they should conduct themselves if they were seeking to obtain information in that way. It included not just bugging premises but covering the whole range of covert activities: vision, listening and any other way in which information can be obtained, whether by using binoculars outside the premises or on private land or whatever it is.
The information within those guidelines was and still is helpful. But it leaves one area on which the guidelines give no guidance: the entering of premises without the knowledge of anyone else. Plenty of advice is given as to entering premises with the consent of the owner or occupier, in order to bug the premises to listen to activities or people; but where there is no means of entering the premises with authority, the guidance does not exist. I personally never authorised a police officer to enter premises to bug them unless he had the consent of the owner or occupier. I should be surprised if other chief officers of police had done that on more than a few occasions. It might have been done in dealing with terrorism, but not with ordinary crime. The circular anyway restricts the area of crime in which it would be appropriate to use bugs.
Now that the Security Service has moved in, I believe that there can and will be occasions when it will need and wish to bug premises in a few serious cases without the consent of the people who own them or live there. It follows that if the Security Service is to work with the police, then the police need to have the same authority. I see few occasions when that option will be used, but a chief officer of police would be unwise to authorise any of his officers to conduct such operations without legal authority for doing it. He certainly could not plead a Home Office circular in his defence, if he were brought before a civil court for trespass or some other legal matter. If the Security Service is to come into this area, then bugging must be recognised as being a requirement on rare occasions. I therefore wish to see it included in the Bill.
§ Baroness Blatch
The detail of Clause 2 has not been debated by the Committee but it is none the less important. I entirely accept the mechanism used by the noble Lord, Lord McIntosh, in order that we should have this debate. One of the principles which will underpin the Security Service's involvement in the work and to which I referred during the Second Reading debate, is that the Security Service would be able to draw on its full range of skills, capabilities and expertise. That is designed to preserve the service's operational effectiveness.
To ensure that the Security Service is able to deploy all its capabilities, it will under certain circumstances require special authorisation to enter or interfere with property. These authorisations are known as "property warrants" and Clause 2 will allow the Security Service to apply for property warrants under its 1534 new function. In doing that, we are merely applying an existing power in a new area. That point was very well made by the noble Lord, Lord Knights. The Intelligence Service Act 1994 (and before it the Security Service Act 1989) already provides for the issue of property warrants under the Security Service's existing functions. The 1994 Act also made that power available to the Secret Intelligence Service and GCHQ, though with the additional safeguard that serious crime property warrants could not relate to property in the United Kingdom. This was, in part, because the remit of those agencies is focused on operations abroad.
In keeping with the principle that the Security Service should be able to draw on all its capabilities, this safeguard now needs to be adjusted to allow the service to apply for serious crime warrants in the United Kingdom. The prohibition will continue to apply to the other two agencies.
This is a highly intrusive power which demands the application of detailed safeguards to control its operation. Accordingly, warrants are signed by the Secretary of State with additional oversight from the commissioner, who also assists the tribunal in this aspect of its complaints work.
As a further safeguard, when applying for a serious crime property warrant, the application must meet the test of the definition of serious crime given in Clause 2 of the Bill. This is the same definition that Parliament approved to govern the issue of warrants under the Interception of Communications Act 1985. That has worked very well and we see no reason to depart from it now. Furthermore, it would not be sensible if the Security Service required interception warrants and property warrants in the course of an investigation and had to meet different tests for each warrant.
That is the position for the Security Service, but it is true that the position for the police is rather different. The police also carry out this kind of intrusive operation and it represents an important investigative tool for them. At present, though, the conduct of police intrusive surveillance operations is governed by administrative guidelines. These administrative arrangements have served us well and there is no evidence of abuse. Again, the noble Lord, Lord Knights, said how rarely the powers were used. But the Government have accepted the desirability of placing this type of operation on a statutory footing.
We are not using the present Bill for these changes, as some have suggested we should, because it is deliberately limited to a single issue that can sensibly be tackled in isolation. It is concerned only with the functions of the Security Service. The question of police surveillance operations is a complex one and we do not want to legislate hastily or improvidently or in a way that inhibits the operational effectiveness of the police in this area. We also need to take account of other initiatives, including the details of the new national crime squad and the new arrangements for NCIS. We are giving careful consideration to the options, in consultation with the police, and hope to bring forward legislation as early as possible.
1535 In the meantime, the simple fact that the police do not yet have a statutory basis for the power is no reason to deny the power to the Security Service, when the exercise of that power is surrounded by a formidable set of safeguards. I can give the Committee the assurance that the Security Service will have no powers that the police do not have. The police have the same powers as the Security Service in regard to entry to or interference with property, but the police exercise those powers on the basis of chief officer authorisation. Although that system has worked well, the Government accept the need to put it on a proper statutory footing at the earliest possible opportunity.
The noble Lord, Lord McIntosh, asked about the extension of powers to bug. I must continue to repeat myself: the Bill will allow the Security Service to apply for warrants authorising entry on or interference with property in the United Kingdom in serious crime cases. These powers are subject to the safeguards I described. As I have already said, the powers exist; they are being extended to a new situation.
My noble friend Lord Campbell referred to bugging. The power available to the Security Service to enter on or interfere with property, which covers bugging, is overseen by the Security Service Commissioner appointed under the Security Service Act 1989.
The noble and learned Lord, Lord Browne-Wilkinson, described this as a major constitutional shift. The powers to enter or interfere with property were first set down in statute in the Security Service Act 1989 and the Intelligence Services Act 1994. I repeat, there are no new powers. It is merely that the powers that do exist are extended to a new area of activity.
§ 6 p.m.
§ Lord Browne-Wilkinson
Will the Minister tell the Committee whether those powers were exercisable in England in relation to property in England in relation to criminal matters? That is the big move that has taken place.
§ Baroness Blatch
That of course is the move. They are existing powers which the Security Service has. The new area of activity is precisely the area just referred to in the United Kingdom.
The noble and learned Lord, Lord Browne-Wilkinson, referred to the case of Entick v. Carrington. That case concerned the requirement at common law for lawful authority before there could be interference with property. There will be lawful authority under the Bill when the Security Service obtains a warrant to interfere with property.
The noble Lord, Lord Knights, referred to the 1984 police guidelines not covering entering property without the owner's consent. The 1984 guidelines do cover entry on to property for the purposes of placing a bug without the consent or knowledge of the property owners. The powers are used very sparingly and with appropriate safeguards; but they nevertheless exist.
1536 This clause refers to the Security Service. It is a focused clause and I recommend that it stand part of the Bill.
§ Lord McIntosh of Haringey
The Minister's reply was truly breathtaking. Let us be clear what we are talking about. We are talking not just about a search for evidence of the kind recognised for many years by a warrant given by a magistrate or by the High Court. We are talking about what is technically called "intrusive surveillance". The Minister herself described it as "very intrusive".
Intrusive surveillance means interception of post and telecommunications, as the noble Lord, Lord Campbell of Croy, reminded us. It involves the planting and using of bugs without the agreement or acquiescence of the owner or occupier of a property. It is about as far as you could go in breaking the rule that an Englishman's home is his castle. It is doing everything that we should well understand in a spy novel were it being done in premises in Moscow or in relation to international spying. To do it in pursuit of what is laughably called "serious crime" in the very wide definition that we have debated in relation to Clause 1 is Orwellian.
The wording that the Minister used is also Orwellian. She did not say that the safeguards are being taken away; she said the safeguard needs to be adjusted. Adjusted, my Lords! She did not say that the police have no statutory authority to do the bugging; she said the authority exists under "administrative arrangements". That was confirmed by the noble Lord, Lord Knights. In other words, there is no statutory power. A chief officer of police can do what he likes and it is called "administrative arrangements". It is all right so long as those doing the bugging are not caught. If they were caught they could be charged with the civil offence of trespass.
The situation is Orwellian because the Minister says she can assure the House that there are no powers that the police do not have. Those were her very words. But it is quite clear that there are powers that are available to the Security Service. The Minister boasted about those powers. She said that the purpose of the Bill is to bring the whole range of skills and powers of the Security Service to the pursuit of serious and organised crime. And these are being applied in conditions in this country in pursuit of serious crime where the police themselves have no statutory authority.
We land up with the worst of all possible worlds on warrants. We land up with an extension of powers for the Security Service, not because they are new powers for the service but because they are applied for the first time to the people of this country. We land up with inconsistent powers as between police and the Security Service in pursuit of the same objective. We have a different trigger for the exercise of these powers. The trigger we have chosen is not an extension of the judicial trigger—the need to apply to a magistrate or a judge—but an extension of the trigger of the executive power, in other words, the Home Secretary or anybody to whom he chooses to delegate these responsibilities. There is no 1537 provision whatsoever so far as I can see for adequate accountability and scrutiny in the exercise of these powers.
I cannot imagine a situation under which there has been a greater extension of the powers of the state against the powers of the individual—and this by a Conservative Government—being done in such a way that it is virtually incomprehensible when the clause is simply read as drafted; namely, as an amendment to previous legislation. Only under questioning has the extent and enormity of the increase in the powers emerged.
§ Baroness Blatch
I am grateful to the noble Lord for allowing me to intervene. I simply cannot allow that to go on the record as the last word on this amendment. To say that the Security Service is not accountable in the process and to suggest that the Home Secretary can act in some kind of cavalier way is simply wrong. The security services are accountable. They are overseen by the committee; they have a security tribunal; they have a commissioner, who will certainly hold the Security Service in operation to account. If a warrant is applied for and secured, it will be secured on the basis of meeting the serious crime test set out in detail in Clause 2.
We take the view that in the pursuit of serious crime—for example, drug trafficking, money laundering and racketeering—these powers are absolutely essential. They will be awarded only on the basis of conforming to Clause 2.
In conclusion, the Home Secretary himself is also fully accountable to Parliament for his actions. The whole situation is entirely transparent. Clause 2 does not refer to safeguards for the police because, as I have said, we wish to put the system on a statutory footing. It is a subject for another debate on another day. Clause 2 refers to the security services. I believe they are accountable; they can be trusted; the system is overseen and is properly transparent.
§ Lord McIntosh of Haringey
The Minister used the word "cavalierly" in relation to the Home Secretary's use of the powers. The Committee will note that I did not use that word. I simply said that the Home Secretary can delegate his power to authorise intrusive surveillance to somebody else. That is simply a fact. The power can therefore be exercised by the Executive. Ultimate responsibility to Parliament is a fact; but it is a very remote fact when it comes to the exercise of powers of this kind.
I yield to no one and my party yields to no one in our desire to pursue those involved in drug trafficking, racketeering, money laundering, and all those things the Minister mentioned. Serious crime, as defined in Clause 2 of the Bill, is a very much wider issue. It has been made clear that it covers a large number of matters for which the kind of powers being sought through this clause are entirely inappropriate. This is not an issue of law and order in the party sense. There is no disagreement about the need to pursue 1538 serious crimes. It is fundamentally an issue of civil liberties. I am not satisfied with my own approach to this.
§ Baroness Blatch
I am sorry to interrupt the noble Lord but I have just been reminded to correct the noble Lord on another point. For the record, the Home Secretary cannot delegate his responsibility for signing warrants.
Lord Campbell of Croy
Perhaps I can intervene. I have with me the latest report of the noble and learned Lord, Lord Nolan. In paragraph 7 he describes over the year—dealing with telecommunications and postal interceptions—the very rare occasions in emergencies when someone else has to do it. He is perfectly satisfied that it was very occasional and could only be done in certain circumstances. I recommend to the noble Lord paragraph 7 of the report of the noble and learned Lord, Lord Nolan.
§ Lord McIntosh of Haringey
That is nice to know. He can delegate under exceptional circumstances. Let us hope that the present practice of doing so only in exceptional circumstances will be maintained.
As I started to say, I am not satisfied that a Motion to oppose the Question that Clause 2 stand part of the Bill is the right way to achieve our very serious objectives in criticising the clause. I propose to come back at Report stage with precise amendments which precisely set out our objectives and requirements in this most important matter. I shall not pursue the Motion further.
Clause 2 agreed to.
Lord Rodgers of Quarry Bank had given notice of his intention to move Amendment No. 6:
After Clause 2, insert the following new clause—
§ POWERS AND DUTY OF POLICE COMPLAINTS AUTHORITY
(".—(1) Nothing in this Act shall preclude or limit investigations by the Police Complaints Authority in respect of any actions undertaken by or on behalf of police officers in pursuance of activities authorised by this Act.
(2) It shall be the duty of the Police Complaints Authority to ensure that any complaint duly made to it by any person in respect of activities carried out in support of the police under the provisions of this Act by officers of the Security Service is forwarded for investigation by the Tribunal appointed under the Security Service Act 1989, which shall report to the Police Complaints Authority on the conclusions of any such investigation.").
§ The noble Lord said: This amendment was fully discussed earlier together with Amendment No. 3. I do not wish to diminish the central question of principle involved in Clause 2, which we have just discussed. However, the whole question of the complaints procedure is not a minor or technical matter. The view of the Minister is broadly that the existing procedures work well. From these Benches and elsewhere in the Chamber, we have sought to demonstrate that we are now dealing with a new 1539 situation. The problem of complaints and the shortcomings of the Bill remain. I shall not proceed with the amendment.
§ [Amendment No. 6 not moved.]
§ Remaining clauses agreed to.
§ House resumed: Bill reported without amendment.