Lords Sitting of 26 November 1996

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Newcastle.

The Lord Bishop of Truro
Michael Thomas, Lord Bishop of Truro—Was (in the usual manner) introduced between the Lord Bishop of Newcastle and the Lord Bishop of Norwich.

Monetary Union: Convergence Criteria
2.45 p.m.
Lord Pearson of Rannoch Lord Pearson of Rannoch asked Her Majesty's Government:
Whether they believe that Germany, France and the other signatories to the Treaty of Rome will be able to meet the convergence criteria for monetary union and whether, if not, they will only withhold their veto of the whole project in return for a substantial repatriation of powers to the United Kingdom.
The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish: My Lords, decisions on which member states meet the conditions for adopting the single currency will be made by heads of government in 1998. Until then considerable uncertainties remain. There will be no opportunity for any single member state to veto the whole project even if it wished to. A separate decision, under qualified majority voting, will be taken for each member state on whether or not it meets the conditions to participate.
Lord Pearson of Rannoch: My Lords, I am grateful to my noble friend for that reply. Does he agree that however capable of dishonest manipulation the convergence criteria for monetary union may be, the criterion contained in Article 109j(4) of the treaty is couched in terms which not even the Luxembourg Court could misinterpret? This states that the third stage of monetary union must start at the latest on 1st January 1999. Does my noble friend agree that if the other countries need to delay beyond that date, it would require a change in the treaty's wording and thus give us the opportunity of the veto, which is the object of this Question?
Lord Mackay of Ardbrecknish: My Lords, I suggest to my noble friend that he might like to put down a specific Question about that particular part of the Maastricht Treaty. I am afraid that I do not have the treaty with me and I cannot give him an answer right now. If, for any reason, it was decided to delay the introduction of the
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single currency for those wishing and able to join it, I do not think there would be anything in the treaty to prevent that delay.
Lord Bruce of Donington: My Lords, does the Minister agree that the Council of Ministers and individual member states may be in some difficulty about determining the true degree of convergence in view of the fact that the convergence criteria will be based upon statistics provided by the Commission itself? Under the treaty it has the exclusive responsibility of providing the figures, and the Commission directorate responsible has so far shown a degree of flexibility in determining what the convergence criteria may be. One expects that, artistically, because its head is a Frenchman.
Lord Mackay of Ardbrecknish: My Lords, the convergence criteria are clearly set down. The statistics are collected from the member states. We all send various measures of statistics to the Commission. Obviously, it has the duty to make sure that all the statistics are collected and presented on the same basis. As an accountant the noble Lord will know that that is often quite a difficult and skilful operation but that it is absolutely essential if one is to compare like with like.
Lord Tebbit: My Lords, is my noble friend aware that I am greatly encouraged to learn that he does not have with him a copy of the Maastricht Treaty? That suggests perhaps that the Treasury's copy is being read by the Chancellor before the ECOFIN meeting. Can my noble friend tell me, in the event that it is clear that the criteria are not being observed, whether that would be just a matter for a little bit of QMV and that these things can be slurred over and not call for any action by Her Majesty's Government?
Lord Mackay of Ardbrecknish: My Lords, the criteria are clearly laid out, as indeed are a number of other aspects of factors that will be looked at when it is decided whether a country can join EMU. It is perfectly clear. I may not have a copy of the treaty, but I do have with me some of the pages relevant to questions I am asked. I can assure my noble friend that the convergence criteria are clearly laid out: fiscal deficit, debt percentage GDP, inflation and so on. All those things are clearly laid out. Of course, it is not just a matter of meeting them on the day; it is whether or not one is moving towards them and, more importantly, as yesterday's discussions made clear, whether one will stick with them after a member state joins, which is why the stability pact is so important.
Lord Stoddart of Swindon: My Lords, irrespective of EMU, would it be to the benefit of the United Kingdom if a substantial part—if not all—of the powers ceded to Brussels were repatriated to the United Kingdom? Does the Minister agree that the crooked deals which apparently have been made to allow certain countries such as France to meet the criteria, although they do not do so, will not be helpful at all to the EU or indeed this country? Finally, does he agree that the

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people in the real world who will decide whether or not these projects go ahead are the lorry drivers of France and other workers who will be extremely disadvantaged by the criteria agreed at Maastricht for EMU?
Lord Mackay of Ardbrecknish: My Lords, the question goes a little wider than even I usually manage to predict. Whatever countries may be doing now, the decision on whether or not they meet the convergence criteria will not be made, as I said in my original Answer to my noble friend, until 1998. Countries are taking steps to try to meet the convergence criteria right now, partly because many of them want to meet them and also because the criteria themselves are a sensible guideline to running a successful economy.
Lord Brabazon of Tara: My Lords, can my noble friend clarify a point that arose during the Statement yesterday regarding our own opt-out of Article 104c?
Lord Mackay of Ardbrecknish: My Lords, I am grateful to my noble friend for asking that question. There was some uncertainty yesterday after the noble Lord, Lord Bruce of Donington, intervened during my repeating of the Chancellor's Statement. It is perfectly clear, as I indicated yesterday, in paragraph 5 of Protocol Number 11, that Article 104c(1), (9) and (11) of the treaty,
"shall not apply to the United Kingdom".
That is perfectly clear and is at variance with some of the suggestions made by the noble Lord, Lord Bruce of Donington, yesterday.
Lord Eatwell: My Lords, is it the Government's view that the convergence criteria should be enforced under all economic circumstances? If not, under what economic circumstances would a breach of the criteria be desirable?
Lord Mackay of Ardbrecknish: My Lords, as I mentioned, the decision will not need to be made until 1998, but my right honourable friends the Chancellor and the Prime Minister have made clear on a number of occasions that it is important that the criteria are observed. If an EMU has to come about, it is important that it is soundly and firmly based. To have that sound base we believe that all the countries joining ought to meet the convergence criteria.
Lord Willoughby de Broke: My Lords, can my noble friend confirm that one of the criteria written into the Maastricht Treaty for entrance into the EMU is membership of an exchange rate mechanism? This country has not been a member of the exchange rate mechanism for the required two years. Is it the case therefore that we cannot be members of an economic monetary union?
Lord Mackay of Ardbrecknish: My Lords, I have answered this question on a number of occasions before. The position has not changed. The original position, which envisaged being a member of the ERM before
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one joined the EMU, was based on narrow bands. The narrow bands no longer exist, and it is unclear what weight will be put on the need to be a member of the ERM. This Government and this party made it perfectly clear that we have no intention of rejoining the ERM.

Freight: Modes of Transport
2.54 p.m.
Baroness Turner of Camden Baroness Turner of Camden asked Her Majesty's Government:
What action they have taken and propose to take to secure transfers of freight from road to other modes of transport.
The Parliamentary Under-Secretary of State, Department of Transport (Viscount Goschen): My Lords, the privatisation of the railways has created an environment in which the transfer of freight from road to rail can take place. In addition, for many years we have made freight facilities grants available to encourage the transfer of freight from road to rail and inland waterways.
Baroness Turner of Camden: My Lords, I thank the Minister for that reply. Is he aware that the overloading of our road system is due to heavy commercial vehicles rather than the much maligned motorist, of which I happen to be one? The sooner there can be a transfer to other means of carriage, the better it will be.
Viscount Goschen: My Lords, the Government support the movement of freight from the road to the rail network. We believe that the new freight companies, the new management that has taken over the companies and the new investment that we have seen will result in more incentives to do exactly that.
Lord Taylor of Gryfe: My Lords, is it the case that the freight services of British Rail were sold to an American company now registered in the UK with limited experience in this country and in this field? The profits of Railtrack publicised last week were substantial. Would not a reduction in the access charge for freight using Railtrack be a positive measure in helping to develop freight transport and the environment?
Viscount Goschen: My Lords, we certainly want to see as many companies as possible competing to purchase the rail businesses. The fact that there has been considerable international interest in the railways in the UK is a good thing because we want to attract investment into this country. The track access charges are regulated by the independent rail regulator. In addition, we have a track access grant scheme where there is a potential transfer from road to rail.
Lord Clinton-Davis: My Lords, does the Minister recall assertions that were made by Mr. Malcolm Rifkind when he was Secretary of State for Transport

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and successive Secretaries of State since then, that they were determined to secure a substantial shift of freight from road to rail? What measurable progress has been made since those days? Is the Minister aware—he was not yesterday—that operators dealing with ports, wagon manufacturers and freight operators (25 of them) have expressed great concern that the main emphasis being given by Railtrack is to passenger services with hardly any emphasis being given to freight?
Viscount Goschen: My Lords, the noble Lord asks about the changes that have occurred between road and rail in terms of transporting freight. It is clear that for a long time there has been a tendency for freight to be moved increasingly by road. We are now seeing new management companies involved in the railfreight businesses. They have clear financial incentives to move freight onto the railways, to attract more customers and to put on new services. For example, EWS announced an expansion of its enterprise wagonload services; new services to link the ports of Immingham, Goole and Avonmouth with the enterprise network will start in January; coal trains have operations in Castle Cement's Padeswood Works in North Wales for the first time in 30 years. I could continue. We are seeing new services and new customers being attracted to the railways. That has to be a good thing.
Lord Clinton-Davis: My Lords, I asked the Minister to give an adequate explanation of the measurable improvement that has been achieved. What percentage of freight transport is covered by rail today as compared with, say, three years ago?
Viscount Goschen: My Lords, the noble Lord may be aware, as he contributed to the rail privatisation debate, that this is a young process; it is not yet fully complete. But already we have seen improvements in services and new services being introduced.
Noble Lords: Answer!
Viscount Goschen: My Lords, I have answered. Not only have I answered the question, but I have given concrete examples. The Opposition cannot stand the fact that new services have been introduced since the privatisation.
Lady Kinloss: My Lords, does the Minister see any reason why waterways should not be used, and our canals?
Viscount Goschen: No, my Lords. They should be used but those are commercial decisions for operators. Often the appropriate inland waterways infrastructure does not exist. Where the waterways infrastructure exists and a capital grant might make a difference in transferring freight from the road to the waterways, there is a freight facilities grant available from the Department of Transport. I witnessed one such scheme
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whereby a large chemical company was using the Manchester Ship Canal, saving thousands of road journeys a year.
Baroness Young: My Lords, does my noble friend agree that those of us who regularly travel by rail are already beginning to see improvements on the privatised rail network?
Noble Lords: Oh!
Baroness Young: My Lords, noble Lords opposite may laugh, but I wonder how often they use the train. We have every reason to expect that after a reasonable length of time—privatisation is a recent development—the privatised rail network will attract freight. What has happened in the past is that the railways have been unable to meet the needs of private enterprise to transfer its goods.
Viscount Goschen: My Lords, my noble friend has made exactly the right point. The Opposition find it amusing that more people are enjoying the railway service, more investment is going into the railways, new services are being provided and new customers are being found. The Opposition are quietly forgetting their opposition to rail privatisation as they did before with the airlines, as they did before with airports and as they did before with British telecommunications. The Opposition's arguments are ones of dogma; ours are ones of practicality.
Lord Richard: My Lords, oh dear! Can the noble Viscount answer the specific questions put to him by my noble friend? What percentage of freight is now carried by rail compared with three years ago? Either he has the figures or he does not have the figures. If he has the figures, he ought to tell us; if he does not have the figures, he ought to get them.
Viscount Goschen: My Lords, I shall be delighted to write to the noble Lord with every figure I can find to illustrate what I described to the House as the historic decline we have seen in the railways, including under-investment in the railways when the noble Lord's party regrettably was in power. What we see now is the new investment and the new services. Noble Lords opposite do not like it. One recalls remarks about British Airways being a pantomime horse of privatisation. Similar things were said about railways. Now we are seeing success.
Lord Dixon-Smith: My Lords, does my noble friend agree that there are so many potential sources from which freight emanates and so many potential destinations to which it has to go that the idea of massive transfers of large volumes of freight to systems such as rail is a little impractical without some involvement with road transport along the way?
Viscount Goschen: My Lords, my noble friend recognises the success of the road transport industry in the UK. The fact that the typical haulage distance in this

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country is only some 60 miles puts a strong physical constraint on the total practicalities of what freight can be moved by rail and what freight can be moved by road. Of course there are issues concerning double handling. But what we want to do is to put in place a climate where rail is as attractive as possible to movers of freight.
Baroness Farrington of Ribbleton: My Lords, can the Minister explain how the Government can fulfil their stated commitment to improving the environment, particularly with regard to the health of children, and how they can assist local authorities to which they will give the responsibility for controlling road traffic in their areas when the air pollution level is dangerous for children living in that locality, when the Minister cannot even tell us what percentage change there has been from road to rail over the past three years?
Viscount Goschen: My Lords, I totally reject the supposition behind the noble Baroness's question. I have made it clear that there has been an historic decline in the use of the railways for transporting freight. I have also made it clear that new services have been put on. We find that encouraging and we do not seek to draw attention away from that fact.
Lord Taylor of Gryfe: My Lords, is the Minister aware that the only part of rail freight which is now in the hands of British Rail is the connecting line with the Channel Tunnel? If he is making future comparisons about performance, perhaps he will keep in mind that that stretch of railway line which is still in British Rail hands has been seriously affected by the difficulties in the tunnel.
Viscount Goschen: My Lords, the noble Lord's point is very true indeed.

Africa: Air Traffic Control Standards
3.5 p.m.
Lord Haskel Lord Haskel asked Her Majesty's Government:
What steps they have taken in the International Civil Aviation Organisation (ICAO) to address the inadequacy of air traffic control over much of Africa, and what progress has been made.
Viscount Goschen: My Lords, under the Chicago Convention the International Civil Aviation Organisation sets minimum standards and recommended practices for all aspects of international civil aviation. It is for contracting states to implement those standards or notify any differences from the standards to ICAO. The United Kingdom's representative at ICAO raised the issue of reported inadequacies in African air traffic control at a meeting of the ICAO Council and the council has asked the air navigation commission to
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investigate the position. The African Regional Air Navigation meeting early next year will also address these issues.
Lord Haskel: My Lords, I thank the Minister for that rather worrying reply. Is he not aware of the report by the International Airline Pilots Association of the dangers of flying over Africa? Does he not agree that, in view of the fact that little can be done at the moment, the Government ought perhaps to be warning passengers of the minimum standards of safety when flying over Africa?
Viscount Goschen: My Lords, I certainly do not accept that my reply was worrying. Indeed, it described the appropriate procedures. There is an international body involved in this field—the International Civil Aviation Organisation—and it is entirely appropriate that it should co-ordinate the setting of standards. We believe that it is entirely right to support the ICAO in this matter. Clearly, standards of air traffic control provision vary considerably around the world and it is for operators to recognise the circumstances into which they are flying and for their commanders to follow the procedures accordingly.
Lord Gisborough: My Lords, is my noble friend aware that Africa is notorious for dangers and that there are accidents waiting to happen unless something is done?
Viscount Goschen: My Lords, there are many countries in Africa. Some have very little infrastructure, never mind an air traffic control infrastructure. What is important is that operators who go to that part of the world are aware of the situation in each individual country over which they fly and adapt their procedures accordingly.
Lord Clinton-Davis: My Lords, is it not obvious that the inadequacy of air traffic control infrastructure over Africa, the virtual non-existence of radar control facilities, the lack of adequate training and competence among air traffic controllers, in so far as they exist at all, and failures of communication links are due to the fact that those countries do not have the wherewithal to be able to support the necessary infrastructure which would reasonably guarantee a much safer standard? Simply referring the matter to ICAO, which of course is desirable, will not resolve the matter unless the developed world understands the nature of the economic problem confronting these countries and, for the sake of their own citizens, aircraft crew are prepared to take action together to try to ensure that standards are improved.
Viscount Goschen: My Lords, the noble Lord is right to draw attention to the perilous economic circumstances of many of the countries involved. That is often the reason why they do not have sophisticated air traffic control equipment or infrastructure. That is why ICAO has a problem of technical assistance and why the United Kingdom, through the ODA, has

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previously funded a number of development projects in Africa which have involved improvements to ATC and other aviation facilities. The international community can do a certain amount through this type of action, but we must all support ICAO in the action it is seeking as well.
Lord Brabazon of Tara: My Lords, bearing in mind that one of the busiest air routes in the whole world is the North Atlantic route, where of course there is no radar cover—it is very effectively controlled by oceanic control at Prestwick and by counterparts in the United States and Canada—would it not be desirable to set up a similar system to cover the African continent with perhaps a control centre in southern Europe run by Europe Control and another one in South Africa run by the South Africans?
Viscount Goschen: My Lords, my noble friend makes an important point about the way in which transatlantic traffic is catered for. But that is rather different because there is crossing traffic in Africa, whereas essentially on the transatlantic routes aircraft depart at one end and are received at the other, and travel in a linear fashion. That is very effective indeed and, without radar, it is possible to organise air traffic control along those lines.
Lord Tebbit: My Lords, can my noble friend ensure that if extra help is given—as it probably should be—for the creation and operation of air traffic control facilities in Africa, that it is very specific; that it remains under the control of the donor nations and that it does not go down the same sink of iniquity, corruption and violence down which most aid goes in Africa?
Viscount Goschen: My Lords, on the wider point of aid, it is clearly the Government's policy that moneys which are given in aid are used as effectively as possible for the benefit of local people. That is very much what has underpinned our aid policy. We want to see the best value for the money that we put in.
Lord Clinton-Davis: My Lords, in the discussions with ICAO we must look for a firm timetable for action because mere talk is not sufficient. I am sure that the House is gratified by the support that has been given, albeit that it is not on an adequate scale, by a number of western countries. Bearing in mind the criteria for support which the Minister has mentioned, will he seek to obtain a timetable for action during the course of the ICAO discussions?
Viscount Goschen: My Lords, I support the sentiment behind what the noble Lord is trying to achieve through his question, but I believe that he underestimates the difficulties involved here. There are very many countries involved and they have widely differing economic circumstances. It is simply not possible to impose on a sovereign nation one's own views about air traffic control systems and then to have them paid for. Clearly, there are improvements that can
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be made here. We want to play our part, but the international community as well needs to be involved and that is what is happening.

Town and Country Planning (Scotland) Bill [H.L.]
3.12 p.m.
The Lord Advocate (Lord Mackay of Drumadoon): My Lords, I beg to introduce a Bill to consolidate certain enactments relating to town and country planning in Scotland with amendments to give effect to recommendations of the Scottish Law Commission. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time.—(Lord Mackay of Drumadoon.)
On Question, Bill read a first time, and to be printed.

Planning (Listed Buildings and Conservation Areas) (Scotland) Bill [H.L.]
Lord Mackay of Drumadoon: My Lords, I beg to introduce a Bill to consolidate certain enactments relating to special controls in respect of buildings and areas of special architectural or historic interest with amendments to give effect to recommendations of the Scottish Law Commission. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time.—(Lord Mackay of Drumadoon.)
On Question, Bill read a first time, and to be printed.

Planning (Hazardous Substances) (Scotland) Bill [H.L.]
Lord Mackay of Drumadoon: My Lords, I beg to introduce a Bill to consolidate certain enactments relating to special controls in respect of hazardous substances with amendments to give effect to recommendations of the Scottish Law Commission. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time.—(Lord Mackay of Drumadoon.)
On Question, Bill read a first time, and to be printed.

Planning (Consequential Provisions) (Scotland) Bill [H.L.]
Lord Mackay of Drumadoon: My Lords, I beg to introduce a Bill to make provision for repeals, consequential amendments, transitional matters and savings in connection with the consolidation of enactments in the Town and Country Planning (Scotland) Act 1997, the Planning (Listed Buildings and Conservation Areas) (Scotland) Act and the Planning

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(Hazardous Substances) (Scotland) Act 1997 (including provisions to give effect to recommendations of the Scottish Law Commission). I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time.—(Lord Mackay of Drumadoon.)
On Question, Bill read a first time, and to be printed.

Police Bill [H.L.]
3.14 p.m.
The Minister of State, Home Office (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 Blotch.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.] Clauses 1 and 46 agreed to.
Schedule 1 [Appointment of Members of the Service Authorities]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 1:
Page 50, line 9, leave out ("Three") and insert ("Two").
The noble Lord said: Before starting on the substantive business and in order to allow noble Lords to leave quietly, perhaps I may apologise to the Committee for my incorrect grouping of the amendments. When I was sorting out the chairmanship from the membership of the core authority I should have separated Amendments Nos. 2, 3 and 6 from the rest rather than Amendment No. 6 alone. On this occasion, therefore, I am moving Amendment No. 1 and speaking also to Amendments Nos. 4 and 5.
The Committee will perhaps be surprised that, in the consideration of this Bill, we have allowed Clauses 1 and 46 to go through without amendments. That is most unusual in the consideration of a complicated Bill, but there are good reasons for it. I believe that those good reasons were made clear at Second Reading when the Opposition gave their support to the establishment of the statutory National Criminal Intelligence Service and the National Crime Squad. These are not matters of political controversy between us and Clauses 1 and 46, which set up those bodies on a statutory basis, have received our entire approval.
Where we differ from the Government is in the constitution in particular of the core authority which is to direct the operations of these two organisations. When I speak to these amendments I am reminded of the amendments that we made to the Police and Magistrates' Courts Bill only a few years ago. I am disappointed that the noble Viscount, Lord Whitelaw, and the noble Lord, Lord Carr of Hadley, who were in their seats only a minute ago, are not in their places now. They played such a valiant part in persuading the
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Government that their original proposals were wrong. The issue that is before us is very similar; that is, whether the Secretary of State should have an effective majority in the core steering authority for these two organisations.
As is made clear in the schedule, what is proposed by the Government is that the so-called independent members, who are in fact members appointed by the Secretary of State, should form half of the core membership of the two bodies and that the chairman who is to be appointed by the Secretary of State should have a second and casting vote. In effect, therefore, that is giving the Secretary of State a majority of the effective voting membership of the core authority. It was exactly those proposals which the House, with support from all sides, resisted so strongly when we considered the Police and Magistrates' Courts Bill.
What we are proposing in Amendments Nos. 1, 4 and 5 is that, instead of three so-called independent members appointed by the Secretary of State, there should be only two; that the civil servant member to be appointed by the Secretary of State should be removed from the core membership and that the two resulting vacancies in the core membership of 10 should be filled by local authority members of police authorities.
It is not as though there were any shortage of effective controls for the Secretary of State in respect of either of these two organisations. For the sake of simplicity I shall concentrate on the National Criminal Intelligence Service, although similar provisions apply for the National Crime Squad. When we look at the clauses in Part I of the Bill which deal with the National Criminal Intelligence Service we find that Clause 25 provides that the Secretary of State has the responsibility for ensuring the efficiency and effectiveness of NCIS. In Clause 26 it is the Secretary of State who sets objectives for NCIS. In Clause 27 it is the Secretary of State who sets performance targets for NCIS. In Clause 29 it is the Secretary of State who has power to remove the director general if necessary. In Clause 30 it is the Secretary of State who has power to order inspections of the NCIS and to give directions to the service in the case of an adverse inspection report.
In Clause 31 it is the Secretary of State who has power to require from the authority reports on any subject he chooses. In Clause 32 he has power to require reports from the director general on any subject that he chooses. In Clause 34 it is the Secretary of State who has power to order inquiries into the operations of NCIS. In Clause 35 he has the right to impose standardised equipment on NCIS. In Clause 36 the Secretary of State has the right to impose the requirement that standardised common services should be used by NCIS. Clause 37 gives him power by regulation to lay down disciplinary procedures. In Clause 38 he has the right by regulation to lay down complaints procedures. There can be no doubt that the Secretary of State has the National Criminal Intelligence Service tied hand and foot to his own wishes and to the wishes of central government.
If that were all, perhaps the argument that he should then appoint an effective voting majority of the members of the core authority would have some

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validity. But there is one element that I have not yet described: the funding of the NCIS. The Minister gave a long and helpful but still very difficult explanation of the funding system in her admirable speech at Second Reading. Since 1992 when NCIS was founded under executive arrangements—that is, without statutory authority—the service has been funded by central government. It is now proposed that NCIS should be funded by top-slicing from the funds of police authorities. As we shall discuss when considering subsequent amendments, there is no particular provision to ensure that the activities of NCIS are not to the financial detriment of other police services. Therefore, the funding of the NCIS, which is so comprehensively directed in detail by the Secretary of State, falls on local authorities, local police authorities and ultimately, after grant, on council taxpayers. In those circumstances, it is wrong that the Secretary of State should have such a majority in the core authority. Surely, it is right that local authority members should have the majority of the places in the authority that directs the ways in which their money, not central government's, is spent. I beg to move Amendment No. 1.
Baroness O'Cathain: I was a little concerned when the noble Lord, Lord McIntosh, described certain members of the NCIS as so-called independent members. First, one would hope that those appointed to this body would be independent. Secondly, the inclusion of a civil servant in the NCIS is most valuable. Noble Lords opposite have said on many occasions, not least in the debates on the privatisation of Recruitment and Assessment Services, that civil servants are different. They have a special ethos; they are objective; they are rigorous in analysis, and they have integrity. All of that would be exceedingly important in the new authority. Thirdly, if one reduces the number of independent members, not so-called independent members, from three plus a civil servant to two—from four to two—it will be difficult for those independent members to be strong enough to counterbalance the overwhelming influence on the other side, as it were. It is important for independent members of any body to have solidarity. That is based on my experience as a non-executive director of several companies. When the balance of the board is tipped too far in the direction of executive directors, independent non-executive directors find it exceedingly difficult to maintain the balance. Perhaps one should think about this two or three times before deciding to support the amendment.
Lord Dixon-Smith: I listened to the noble Lord, Lord McIntosh, with great interest. He referred to so many clauses and other aspects of the Bill that for a moment I had the vain hope that the Committee would not hear about them any further. However, I assume that such an optimistic wish will not be part of this afternoon's discussion.
I should like to make two points. First, NCIS and the National Crime Squad will be above all national services. Therefore, it is not unreasonable to suppose that national representation is at least as appropriate as local representation. I do not want to go into the detail
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of the financial arrangements now. Local members sitting at this level are in one sense answerable to no one. In this instance independent members who are appointed by the Secretary of State—my instinct is not to like such appointees—are likely to be independent because the Secretary of State is himself answerable to Parliament. The other place will quite rightly call him to account if he appoints anyone who is seen to be "not independent".
Lord Harris of Greenwich: I believe that the noble Lord, Lord Dixon-Smith, expresses a very optimistic view. Let us go back to the Police and Magistrates' Courts Act. On that occasion we talked about independent members and there was a great to-do in this House. Eventually, the Government realised that they were about to be defeated and sued for peace. A number of us—the noble Lord, Lord McIntosh, myself and others—went into a committee room to discuss what would be a satisfactory formula.
The idea that the other House would pursue the Minister vigorously if he appointed the wrong independent members was very soon disproved. Under the very complicated formula which was eventually announced by the noble Earl, Lord Ferrers, we were told that there was a new system to appoint these so-called independent members to police authorities, as a result of which a number of names came before the Home Secretary. The Home Secretary then sent his own abbreviated list of so-called independent members to the police authority. That authority then chose a number from that list. Following a Question for Written Answer tabled by the noble Baroness, Lady Hilton of Eggardon, it became clear that every one of those names had been checked with the Home Office Whip in the House of Commons. So much for independent members! They were all checked to ensure that they had the right political views, or at least not unacceptable political views. I believe that that is what "independent members" means so long as Mr. Michael Howard is Home Secretary. I hope that the situation will change if there is a change of government.
The noble Baroness, Lady O'Cathain, drew a comparison between the independent members of the new authorities and executive directors or non-executive directors of companies. With great respect to the noble Baroness, I cannot understand the analogy. Local authority members put forward by the local authorities are in no sense executive directors; they are merely elected representatives of the people. That seems to me to be a simple and desirable way of making such a decision. They are accountable to their own police authorities, if I may say so to the noble Lord, Lord Dixon-Smith. They represent someone, whereas the so-called independent members will represent only Mr. Howard if he is still Home Secretary at the time the Bill reaches the statute book.
Baroness O'Cathain: Before the noble Lord sits down, perhaps I may make the point that I was not saying that it was a direct analogy, but that it reminded me of the situation. The people who will be appointed by the local authority will have the same relationship

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with one another as an executive on a board would have. The point I was making was that we need to have a balance, because if we have too few of either—say there were only three or four local authority members while the rest were independent, and I refuse to call them "so-called independents", because they are independent—there would be a difficulty. The balance according to the Bill is about right. I drew on my own experience just to show that it can become difficult. Just one or two can result in a situation where one loses that sense of balance.
3.30 p.m.
Lord Campbell of Alloway: I shall leave aside for a moment the question of independents about which the Committee has heard serious argument. On this I agree with the question of balance put forward by my noble friend Lady O'Cathain. The short points which I wish to make concern the logic of the speech of the noble Lord, Lord McIntosh, to which I attended with the utmost care. First, he took the point, and took it well—he took all his points well, if I may say so—that the Secretary of State has effective power. He referred to most, if not all, of the relevant clauses in the Bill. Then he conceded, as I understood it, that because of that it should have and would have a majority of voting power but for the question of funding.
Then one comes to the question of funding. The noble Lord took the point that because there was a distinction between what was funding by central government and is now funding by the police authority, there was some effective and realistic distinction. With respect to the noble Lord, I cannot see why there should be. This is a totally different structure of Bill from the Bill to which the noble Lord referred during which my noble friend Lord Carr of Hadley made a notable contribution which I think I supported. On the presentation of this argument by the noble Lord, Lord McIntosh, I cannot see the substance of the justification for this amendment.
Baroness Blatch: While I accept fully the noble Lord's apology over the amendments, I must say that it makes it rather difficult. It was not until mid-day that I knew that we were going to discuss Amendments Nos. 1 to 5 with Amendment No. 6 separately. Two hours later I was told that Amendment No. 2 would come out and join Amendment No. 6. Only when the noble Lord was on his feet did I know that Amendment No. 3 was being decoupled. I say that as a preface, because there may be some overlap between me responding to this set of amendments and the next set which, as I understand it now, is to be Amendments Nos. 2, 3, and 6.
There is no doubt that the membership of the two new service authorities to maintain important new national services was bound to be the subject of close scrutiny by the Committee. It would be astonishing if that were not so. The Government's approach has been to try to strike a careful balance. We need to preserve our tripartite and essentially local system of policing, and yet ensure that national and multi-agency interests are adequately reflected in these new arrangements. That is
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not an easy balance to strike and I entirely accept that there is room for more than one view on precisely how it should be achieved.
Turning to the detail of these amendments, they propose that the number of independent members should be reduced from three to two. First, perhaps I may remind the Committee that there are three members on one service authority of 19 and three members on another service authority of 17. The introduction of independent members into local police authorities has proved to be an enormous success. They have introduced new ideas and brought new skills and experience to the work of police authorities. I have no doubt that the role of independent members in the new service authorities will prove to be equally valuable, as my noble friend Lady O'Cathain said. Reducing their number from three to two will be a vital opportunity lost. It will not be possible to achieve the wider spread of experience and skills which would be possible with three independent members, and it will be that much harder for the independent members, as my noble friend said, to make an impact on the business of the service authorities. We do not believe that it is unreasonable on bodies with a membership of 19 in the case of the National Criminal Intelligence Service and 17 in the case of the National Crime Squad for each to have three independent members. Indeed, we believe that three is really a minimum requirement if there is to be a meaningful independent element to the arrangements.
Nor is it clear what other practical advantage is to be gained by reducing the number of independent members in this way. The amendments propose that the vacancy created by reducing the number of independent members should be filled by a local authority representative. But representatives of police authorities, including those for the metropolitan police district, Scotland and Northern Ireland, will comprise half the 16 voting members on the service authority for the National Criminal Intelligence Service. When it comes to voting on the levy, they will comprise two-thirds of the nine members eligible to vote. We believe that this strikes the right balance for an authority, which needs to reflect UK and multi-agency interests. It is by no means obvious, when seeking to reconcile all these various interests and keep the overall size of the authority to manageable proportions, why the number of local authority representatives from England and Wales, who already form the largest single block, should have even more representatives.
When one looks at the service authority for the National Crime Squad, the effect of the amendments is even more difficult to defend. Representatives of police authorities already have an overwhelming majority of the voting membership both generally and in relation to decisions on the levy. There really is no justification for extending this majority still further.
I accept that these issues are complex. But it is wrong to focus on the constitution of the "core" membership as if it were somehow a separate body, or that "core" members had some extra powers or functions. They do not. The purpose of the core membership is simply to bring a common sense of purpose and direction to services which will need to work very closely together.

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We believe that such core membership is preferable to having a single service authority for both services, or having two totally separate authorities. We need to look at the overall membership of the two authorities. On that basis, we believe that the balance of independent and local police authority members is right and that these amendments would not achieve a better balance.
I turn now to the question of the role of Crown servants on the service authorities. These amendments would exclude Crown servants from the core membership of the service authorities. The result would be that it would not be possible for all three home departments to be represented on the service authority for the National Criminal Intelligence Service and the Secretary of State would not be represented at all on the service authority for the National Crime Squad. I know that it has been argued that the Secretary of State is represented in other ways, but that is to misunderstand the role of those other members. The independent members, although appointed by the Secretary of State, will most definitely not represent him. They will be utterly independent, able to deal with all issues exactly as they, as individuals, see them. Their purpose is to bring their skills and their experience to the work of the service authorities, not to represent the views of the Secretary of State.
I say in passing to the noble Lord who is enjoying a little scoff on the sidelines on the Front Bench of the Liberal Party that he does a great disservice to the many people appointed to authorities up and down this land who perform magnificently and independently, even though, from time to time, their appointee is the Secretary of State or a Secretary of State.
Lord Harris of Greenwich: We are playing around with this word "independent". Similar guarantees were given by the noble Earl, Lord Ferrers, on the last occasion we discussed the matter. Can I ask a simple question? If the Government are striving for genuinely independent people, why, on the last occasion, was every name checked by the Government Whips' Office in the House of Commons.
Baroness Blatch: The noble Lord cites one particular instance which has been properly answered in another place. There are thousands of people who are appointed by Ministers from all parties. That was done under the party opposite just as it is under this party. I say to the noble Lord, as he sits there enjoying his moment of ridicule, that he does a disservice to many people who, I believe, give valiantly and generously of their time, their expertise and their judgment as independent members of many bodies throughout the land.
Lord Harris of Greenwich: The noble Baroness has been good enough to say that the question was answered in another place. I am, frankly, not aware of the answer in another place. On the basis of the noble Baroness's statement that these people on this occasion, as on the last, are to be genuinely independent, receiving no form of direction, advice, or anything from the Home Secretary, why, as far as the independent members of the Police Authority were concerned, was every name
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checked by the Government Whips' Office in the House of Commons? The noble Baroness says that the question was answered in another place. I do not know the answer. Can she tell us?
Baroness Blatch: I shall bring this altercation to an end by simply saying to the noble Lord, and I hope the House will accept it, that we now have Nolan's procedures in place. These are points that will be made entirely consistent with Nolan procedures. If the noble Lord wishes to take issue with that, the noble Lord may do so. I certainly wish to put on record my admiration of the people who give of their expertise, their time and their judgment in public service up and down the land as a result of being appointed by members of various departments of government.
Similarly, the person appointed to represent the Secretary of State in his capacity as police authority for the Metropolitan Police district will not be able to represent the Secretary of State's interests more widely. That person will be expected to speak in the interests of the Metropolitan Police district and that may well not be consistent with, or take account of, wider considerations. In short, the only way in which the wider responsibilities of the Secretary of State can be properly represented on both service authorities is by the presence of a Crown servant. May I, at once, associate myself with the comments made by my noble friend Lady O'Cathain when she described the civil servants and their role in such committees. That is why the Bill proposes that one Crown servant—one Crown servant—should serve on both authorities, with two additional places on the service authority for the National Criminal Intelligence Service to represent the interests of the Secretaries of State for Scotland and for Northern Ireland. We believe that such representation is reasonable, although we recognise that the role of Crown servants should be to contribute to the deliberations of the service authorities and should not extend to the power to vote.
These are important issues which rightly deserve close scrutiny. I have sought to explain why we believe that the proposals in the Bill fairly reflect the interests of all the parties who will need to he involved in maintaining and supporting the new services if they are to be effective. There is always room for argument about whether arrangements of this kind strike the right balance. We believe that we have done so and, for the reasons I have explained, we are not persuaded that the amendments represent an improvement.
References have been made to the local police authorities. That point makes itself. They were local police authorities. There was a genuine debate in this House and the Government eventually reconciled differences between the views of this House and the Secretary of State. This is a national body with plenty of local representation on it, but it is right that there should be some people representing the wider national view as well.
There are many disadvantages, and in those circumstances I hope that the noble Lord will feel able to withdraw the amendment. If not, I hope that noble Lords will support me in the Division Lobbies.
3.45 p.m.
Lord McIntosh of Haringey: The Minister was not, of course, in the Home Office team at the time of the Police and Magistrates' Courts Bill. If the noble Baroness had been she would have recognised some of her arguments as being those which the noble Earl, Lord Ferrers, put forward on behalf of the Government and the Home Office at that time and about which the House expressed such scepticism that the Government were persuaded they were not going to get their proposals through and had to make very welcome concessions.
Incidentally, if I may add to what the noble Lord, Lord Harris, said, my understanding is that the solution we came up with, which we persuaded the Government to adopt, is working rather well. The appointment of the third independent member and of the chairman is actually working, so perhaps our efforts were not entirely in vain.
However, there is an element of unreality in the arguments, in particular of the noble Baroness, Lady O'Cathain, and also of the Minister, about the use of the word "independent" and objections to the use of the phrase, "so-called independent". These people are appointed by the Secretary of State. We know perfectly well what that means in practice, as the noble Lord, Lord Harris, pointed out. We know perfectly well that the names in the end go through the Government Whips' Office in the House of Commons just as we know that when local appointments are being made a list is posted up behind the bar in the local Conservative Club. There is no doubt about these things. We do not have to pretend. We do not have to have mock innocence about it. When the Secretary of State makes an appointment he makes an appointment with his own objectives in mind. Those objectives are political as well as administrative.
Baroness O'Cathain: I am most grateful to the noble Lord for giving way. I find this difficult because I have worked on three separate government organisations or government sponsored organisations. One was the Design Council; another was the Engineering Council; and another was a marketing thing for the Ministry of Agriculture. I have to say that on each occasion I was very independent. In fact, at one stage I was told I was a bit of a loose cannon, which I rather enjoyed. But although I got my letter from the Secretary of State for each of those three appointments I never thought that my non-pay and rations, so to speak, or my job with them, or my position with each of the three, depended on my kowtowing to the Secretary of State. Far from it. I felt independent, and I operated independently.
I am sure there are people sitting on the other side of the House who have accepted government positions from this Government who are acting in precisely the same way on health authorities and so on.
Lord McIntosh of Haringey: The noble Baroness has chosen to personalise it, which I certainly did not wish to do. I recall that she came to this House on a Conservative working list and then found that she could not sit on the Conservative Benches because she was a local government employee earning more than £19,000
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a year, and I hope a lot more. Therefore, she sat on the Cross Benches. I do not suppose that she gave up her membership of the Conservative Party at that time, and I do not suppose she changed her opinions. I am sure she was as independent then as she is now. I have no doubts about her independence at any time.
Baroness O'Cathain: I must ask to be heard again. I was not a member of the Conservative Party when I joined this House. I was not.
Baroness Blatch: I was about to say that noble Lords opposite started this one, so I make no apology for intervening. I want simply to defend my noble friend. I believe she has acted properly on all occasions. I can even say as a Front Bencher that I have been on the Front Bench when my noble friend has taken issue with the Government. Therefore, she is a very independent lady indeed.
A feeling is emerging from the remarks of noble Lords opposite that I do not wish to be taken seriously; namely, that if somebody who happens to be a Conservative is appointed to a body, that person is incapable of being independent. To personalise the matter, there is a noble Lord on the Liberal Democrat Front Bench who, as I understand it. was an appointee of this Government. I suspect that Liberal Democrat and Labour appointees, many of them on health authorities, are doing a good job. Because—
Lord Harris of Greenwich: May I ask to whom the noble Baroness refers? Will she be good enough to give a name?
Baroness Blatch: My understanding is that the noble Lord, Lord Thomas, was appointed to the Criminal Injuries Compensation Board.
Lord Thomas of Gresford: The Minister is absolutely right. I resigned because of Mr. Michael Howard's change to the criminal injuries compensation scheme, a matter to which I referred when I made my maiden speech.
Baroness Blatch: The noble Lord makes my point for me. That confirms the noble Lord's independence. I am simply saying that being of Liberal Democrat, Labour or Conservative persuasion in terms of the vote does not inhibit people from being independent and taking issues as they see them, on their merit, and making their own judgment. That is important.
Lord McIntosh of Haringey: The Minister does not need to defend her noble friend Lady O'Cathain; she was not being attacked. Had she listened to my remarks she would have heard me praising the noble Baroness's independence at all times.
Personal issues apart, there is a profound difficulty. To accuse those of us who attack the expanding use of quangos in this country and attack the use of quangos to replace bodies elected by local people of doing a disservice to the individuals who serve on those quangos is not to elevate public debate on the issue. There is no

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way in which we can express a general opinion regarding the use of nomination, as opposed to the election of members of the many local authorities, if we are to be ruled out of order and told that we are doing a disservice to the individuals concerned. We oppose quangos because we are opposed to a system of nomination as opposed to election; and we are opposed to the effect of that on subsidiarity and democracy in this country. We do not do so out of personal antagonism towards any of the individuals appointed to the quangos.
Lord Dixon-Smith: Perhaps the noble Lord might agree that in this particular instance we are not dealing with the replacement of some local democratic body by a quango. If any body is involved at all in this matter it is the Home Office, which at present has control of NCIS. There is of course at the present time no National Crime Squad.
Lord McIntosh of Haringey: Exactly, the noble Lord makes my point. What we see here is the creation of a new quango. We are seeing the creation of a new core membership which does not exist now and in which the Secretary of State will have an effective voting majority, as the Minister recognised. That is not a criticism of any of the individuals who are likely to be appointed to that body.
Lord Dixon-Smith: The noble Lord might concede that that is perhaps preferable to control by the Home Secretary himself, which seems to be the alternative.
Lord McIntosh of Haringey: It is control by the Home Secretary himself. The nominations are made by the Home Secretary. The alternative that we propose is that it should not be the Home Secretary, but that a majority should be appointed by local authorities, the police and chief officers of police. The Minister and her friends have made our case very effectively for us. They made clear that their objection to this degree of democratic control—over something that will be paid for not by central government but by local authorities—is political. They appear to have made the case for these amendments more effectively than I was able to do. I wish to take the opinion of the Committee on Amendment No. 1.
3.55 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 96; Not-Contents, 172.

Division No. 1

CONTENTS

Addington, L.

Blease, L.

Allen of Abbeydale, L.

Bonie, L.

Barnett, L.

Carmichael of Kelvingrove, L.

Beaumont of Whitley, L.

Carter, L.

Berkeley, L.

Cledwyn of Penrhos, L.

Blackstone, B.

Clinton-Davis, L.

134

Dahrendorf, L

McIntosh of Haringey, L.

David, B.

McNally, L.

Dean of Beswick, L. [Teller.]

Mallalieu, B.

Dean of Thornton-le-Fylde, B.

Mar and Kellie, E.

Donaldson of Kingsbridge, L.

Mason of Bamsley, L.

Donoughue, L.

Merlyn-Rees, L.

Dortnand of Easington, L.

Milner of Leeds, L.

Dubs, L.

Molloy, L.

Elis-Thomas, L.

Monkswell, L.

Exmouth, V.

Morris of Castle Morris, L.

Falkland, V.

Nicol, B.

Farrington of Ribbleton, B.

Party, L.

Fisher of Rednal, B.

Paul, L.

Fitt, L.

Peston, L.

Gallacher, L.

Plant of Highfield, L.

Geraint, L.

Prys-Davies, L.

Gladwin of Clee, L.

Ramsay of Cartvale, B.

Gould of Pottemewton, B.

Rea, L.

Graham of Edmonton, L. [Teller.]

Richard, L.

Grenfell, L.

Ritchie of Dundee, L.

Grey, E.

Robson of Kiddington, B.

Harris of Greenwich, L

Rodgers of Quarry Bank, L.

Haskel, L.

Sainsbury, L.

Hayman, B.

Scanlon, L.

Hayter, L.

Serota, B.

Henderson of Brampton, L.

Sewel, L.

Hilton of Eggardon, B.

Shannon, E.

Hollis of Heigham, B.

Shaughnessy, L.

Hooson, L.

Shepherd, L.

Howie of Troon, L.

Simon, V.

Hughes, L.

Stallard, L.

Hutchinson of Lullington, L.

Stoddart of Swindon, L.

Hylton, L.

Strabolgi, L.

Jeger, B.

Tenby, V.

Jenkins of Hillhead, L.

Thomas of Gresford, L.

Jenkins of Putney, L.

Tordoff, L

Judd, L.

Turner of Camden, B.

Kilbracken, L.

White, B.

Kilpatrick of Kinctaig, L.

Whitty, L.

Kirkhill, L.

Wigoder, L.

Lytton, E.

Williams of Elvel, L.

McConnell, L.

Winston, L.

NOT-CONTENTS

Aberdare, L.

Charteris of Amisfield, L.

Addison, V.

Chesham, L. [Teller.]

Ailesbury, M.

Courtown, E.

Ailsa, M.

Cox, B.

Aldington, L.

Craig of Radley, L.

Allenby of Megiddo, V.

Cranbome, V. [Lord Privy Seal.]

Anelay of St. Johns, B.

Crathome, L.

Annan, L.

Cockney, L.

Ashboume, L.

Cullen of Ashboume, L.

Astor of Hever, L.

Cumberlege, B.

Barber of Tewkesbury, L.

Dacre of Glanton, L.

Belhaven and Stenton, L.

Davidson, V.

Bemers, B.

Dean of Harptree, L.

Blaker, L.

Denham. L.

Blatch, B.

Denton of Wakefield, B.

Bledisloe, V.

Devonport, V.

Blyth, L.

Dixon-Smith, L.

Brabazon of Tara, L.

Downshire, M.

Braine of Wheatley, L.

Elibank, L.

Brookes, L.

Ellenborough, L.

Brougham and Vaux, L.

Elles, B.

Burnham, L.

Elliott of Morpeth, L.

Butterworth, L.

Elton, L.

Byford, B.

Eme, E.

Cadman, L.

Fairfax of Cameron, L.

Caithness, E.

Feldman, L.

Campbell of Alloway, L.

Ferrers, E.

Campbell of Cray, L.

Fraser of Cannyllie, L.

Camegy of Lour, B.

Gainford, L.

Chadlington, L.

Geddes, L.

Chalker of Wallasey, B.

Gisborough, L.

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Gormanston, V.

Napier and Ettrick, L.

Goschen, V.

Nelson, E.

Griffiths of Fforestfach, L.

Northesk, E.

Hailsham of Saint Marylebone, L.

O'Cathain, B.

Halsbury, E.

Onslow, E.

Harding of Petherton, L.

Oppenheim-Bames, B.

Hardinge of Penshurst, L.

Orkney, E.

Harris of Peckham, L.

Palmer, L.

Hastings, L.

Palumbo, L.

Hemphill, L.

Park of Monmouth, B.

Henley, L.

Pender, L.

Hogg, B.

Perry of Southwark, B.

Holdemess, L.

Peyton of Yeovil, L.

HolmPatrick, L.

Pilkington of Oxenford, L.

Hothfield, L.

Pym, L.

Howe, E.

Quinton, L.

Hylton-Foster, B.

Rankeillour, L.

Ilchester, E.

Rathcavan, L.

Inchcape, E.

Reay, L.

Inglewood, L.

Rees, L.

Jellicoe, E.

Renfrew of Kaimsthorn, L.

Jenkin of Roding, L.

Rennell, L.

Johnston of Rockport, L.

Renton, L.

Kinloss, Ly.

Richardson, L.

Knights, L.

Rotherwick, L

Lauderdale, E.

Saatchi, L.

Layton, L.

St. Davids, V.

Lindsay, E.

Saltoun of Abernethy, Ly.

Liverpool, E.

Sanderson of Bowden, L.

Lloyd-George of Dwyfor, E.

Sandford, L.

Long, V.

Seccombe, B.

Lucas, L.

Sharpies, B.

Lucas of Chilworth, L.

Shaw of Northstead, L.

Lyell, L.

Shrewsbury, E.

McAlpine of West Green, L.

Skelmersdale, L.

McColl of Dulwich, L.

Soulsby of Swaffham Prior, L.

Mackay of Ardbrecknish, L.

Stewartby, L.

Mackay of Clashfem, L. (Lord Chancellor.)

Stodart of Leaston, L.

Mackay of Drumadoon, L.

Strange, B.

Macleod of Borve, B.

Strathcarron, L.

Malmesbury, E.

Strathclyde, L. [Teller.]

Marlesford, L.

Sudeley, L.

Masham of Ilton, B.

Swansea, L.

Merrivale, L.

Swinfen, L.

Mersey, V.

Terrington, L.

Middleton, L.

Teviot, L.

Miller of Hendon, B.

Thomas of Gwydir, L.

Mills, V.

Trumpington, B.

Milverton, L.

Ullswater, V.

Monk Bretton, L.

Vivian, L.

Montgomery of Alamein, V.

Wade of Chorlton, L.

Mountevans, L.

Walton of Detchant, L.

Moyne, L.

Westbury, L.

Munster, E.

Whitelaw, V.

Wilcox, B.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
4.05 p.m.
The Deputy Chairman of Committees (Baroness Cox): The next amendment is Amendment No. 2, in the name of the Lord McIntosh of Haringey. I should point out that if Amendment No. 2 is agreed to I cannot call Amendment No. 3 because of pre-emption.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 2:
Page 50, leave out lines 18 to 20.
The noble Lord said: In moving Amendment No. 2 I should like also to speak to Amendment No. 6. I have left out Amendment No. 3 not merely because of
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pre-emption, of which the Deputy Chairman has reminded us, but also because Amendment No. 3 is a fall back to Amendment No. 2.
Both of these amendments refer to an issue which took a great deal of debate at the time of the passage of the Police and Magistrates' Courts Bill, in which this House distinguished itself by winning the principle of the right of a body to elect its own chairman against the imposition of a chairman by a Secretary of State. That was done for local police authorities, but the argument is as strong for the National Criminal Intelligence Service and for the National Crime Squad.
The fundamental argument in all of this is that the chairman of a body of this kind has to command the confidence of the members of the authority of which he is the chair. That is the purpose of these amendments. Amendment No. 2 proposes that the section which states that the Secretary of State shall appoint the chair shall be removed and be replaced by a new provision which states that the chairman of both the NCS authority and the NCIS authority shall be appointed by the core members appointed under this schedule from among their number.
It will be noted that this is a modest amendment. It does not include the additional members—who are largely local authority members—of the two separate authorities. It includes only those members who are the core members of the two authorities. It does not follow, the Committee having expressed its view in the Division on the last amendment, that the chairman will be elected from among 10 people, five of whom—and let us not get back to the word "independent"—are appointed by the Secretary of State, however independent they may turn out to be in practice.
The discussions that we had at the time of the Police and Magistrates' Courts Bill were generally thought—not only by Members of this House but also by the outside world—to be an issue of considerable constitutional importance. The Government wanted the right to appoint the chairmen of all police authorities. I accused the Secretary of State at that time of wanting the ability to sit his chairmen around his table in his Home Office and to tell them what to do, which would have resulted, via the back door, in a national police force.
The Government disclaim the desire to create a national police force through the provisions of the Bill, and I believe them. I agree with the Government that the Bill does not create a national police force comparable to the FBI. I accept what the Government say: that there is no equivalent here of federal crimes and that the only activity of these two organisations is to be in support of the operations of individual police forces. There is nothing comparable in the way in which they operate to the operations of the national police forces of the United States, France, and many other countries in the developed world. But, at the same time, the recognition which is implicit in that understanding of the importance of the tripartite system in the control of our police needs to be preserved and enhanced as we consider the Bill's provisions.
What we have had for many years in the control of our police force has been a tripartite system between local authorities and police authorities, which has sometimes been more complicated because of the existence of magistrates on police authorities, and the Home Secretary. That has been the tried and tested method of control of police forces. Remarkably few scandals and intolerable disagreements have resulted from what appear on the face of it in "management theory"—if I may appeal to the noble Baroness, Lady O'Cathain, in the matter—to be a recipe for self destruct. It does not actually happen that way.
Whatever management theory may be, all of these people—and they are all non-executive directors, by the way—have managed to work together and to control police forces. They have managed to pursue coherent and yet flexible and responsive policing in all parts of this country. Surely we can do the same today for the NCIS and for the National Crime Squad. Surely we can do so by upholding the tripartite system and saying that those core members, wherever they come from and whether they are appointed by the Secretary of State, by chief officers of police or by local authorities, can be trusted to get together and to agree on the best person to act as their chairman; and then to elect that person to act as chairman. That does not need the heavy hand of the Home Secretary; it is a continuation of a well-established and well-proven system of the control of policing in this country. I commend the amendment to the Committee. I beg to move.
Lord Renton: With great respect to the noble Lord, I think, on reflection, that he should not have made the speech that he has. The noble Lord introduced the concept of local democracy, referring, quite rightly, to the way in which police authorities have been chosen mainly by local authorities since the Police Act 1964. Here, on the other hand, we have two national bodies which are largely of an advisory character. In order to ensure better democratic control over them, we have to engage the responsibility of the Home Secretary. That is what the schedule and the clauses which introduce it aim to achieve.
The Home Secretary's responsibility is surely much more closely and more strongly engaged if he is to appoint the chairman. I believe it will cause a little confusion if we start borrowing the concept of local democracy and try to apply it to these two national bodies. It just does not follow.
Lord Knights: At one time the concept of a national criminal intelligence service would probably have been regarded with extreme suspicion—suspicion based on the perceived activities of organisations of that kind in other parts of the world. I suggest that it is a measure of the trust and confidence with which the police service of this country is held that, so far as I am aware, anyway, no hint of criticism has ever been raised at the system which was set up some four and a half years ago as, I understood, a common police service by mutual agreement of chief constables, local police authorities and the Home Office. I repeat, no hint of criticism has ever been levelled at it during that period. Indeed, the
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Home Affairs Committee of another place last year welcomed the start that NCIS had made towards improving the response to serious, organised and international crime. Those words come from paragraph 95 of that committee's Third Report in Session 1994–95. Indeed, Members of the Committee have already agreed this afternoon that such a system should be set up as a corporate body.
However, if that trust and confidence is to be maintained, I believe that it is essential that there should be no breath of political influence about its activities and that the NCIS service authority should be clearly seen as a true partnership of the three tripartite bodies which are responsible for the totality of policing in this country at present. I do not believe that that will be possible if the chairman is to be appointed by the Home Secretary and from one of his three appointees to that authority.
Given the power which is vested in the authority to call upon the director general to resign in the interests of efficiency and/or effectiveness contained in Clause 7, I believe that it is imperative to ensure that there can be no suggestion of undue influence being brought to bear on the authority by way of the Home Secretary's appointment of the chairman. There may well never be any such influence, but the possibility of alleging it should be removed. I shall support the amendment.
Baroness Blatch: When speaking on the previous amendment, I made clear that our approach to the membership and to the chairmanship of the service authorities has been to strike a balance between our tripartite system of policing and the need to reflect national and multi-agency interests in these new arrangements. I entirely accept that the question of the chairmanship is of particular importance in that context. The amendments do not challenge the proposal that there should be a single chairman for both authorities. I welcome that measure of agreement. Such an arrangement will be of crucial importance in building the shared strategic vision and close working relationship which will help to achieve the best from both services. But the amendments will have two other results which I am unable to welcome so warmly.
First, and I believe most importantly, they will mean that the chairman will not necessarily be one of the independent members. It could be one of the police authority representatives or it could—although perhaps less likely—be one of the police service representatives. I would not wish in any way to undervalue the particular skills and experience that such members will bring to the service authorities, but I do not believe that it would be right for either of them to be the joint chairman of both service authorities. That is particularly true in the case of the National Criminal Intelligence Service. I have already mentioned its United Kingdom and multi-agency remit. A chairman drawn from representatives of police authorities alone or police forces in England and Wales could not, in my view, properly reflect that wider remit. An independent member is best placed to do so and to provide the impartial leadership which these new authorities will clearly need.

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Secondly, the amendments would mean that the core membership rather than the Secretary of State would appoint the joint chairman. This place has in recent years taken a close and influential interest in the arrangements for the appointment of police authority chairmen. But service authorities for national and multi-agency services raise rather different issues. I have already explained why the Government believe that those differences constitute strong arguments for the joint chairman being an independent member. We also believe that the Secretary of State, in consultation with the Secretaries of State for Scotland and Northern Ireland, is best placed to take account of those national and multi-agency interests by appointing the chairman from among the independent members. If the appointment was not to be made by the Secretary of State, it would be necessary to give further careful thought to the question of whether the appointment should instead be made by the other core members or the wider membership of both authorities. We believe that this would create unnecessary complications and that the best approach, and a reasonable one given the nature of the bodies involved, is for the appointment of chairman to be made by the Secretary of State.
Reference has been made to the powers that the Secretary of State would take. First, the Bill has been before the Delegated Power Scrutiny Committee. We shall be responding positively to the recommendations of the scrutiny committee. However, it did not query the numbers of powers in the Bill for the Secretary of State. Secondly, all the powers are similar to those for the police authorities. The service authorities will also have many of the powers; for example, to set objectives.
The noble Lord, Lord Knights, clearly is concerned. First, he gave examples of the kind of malevolent activity of a chairman which could go undetected if undue influence were brought to bear either on the director general or on members of the board. I should like to think that there are safeguards set out in the Bill. I refer to the rather exposed way in which the service authorities will work and the accountability through Parliament by the Secretary of State for appointments that he makes. Clearly if appointments go wrong those are public issues and at least one can hold a Secretary of State accountable for them. Therefore, I do not believe that some of the noble Lord's concerns will be borne out in practice. Nevertheless, I take them seriously.
For the reasons that I gave, we are not persuaded that these amendments would make better provision for the appointment of a joint chairman. They would leave open the possibility that the service authority could be chaired by one of the police representatives. I do not think that that would be appropriate. Alternatively, one of the police authority representatives might be appointed but he would be representative of police authorities in England and Wales only. We do not believe that this is the best approach given the United Kingdom and multi-agency remit of the National Criminal Intelligence Service. In the circumstances, although I recognise again that
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there is more than one view on this sensitive matter, I hope that having heard what I and my noble friend Lord Renton said the noble Lord will not press the amendment to a vote.
Lord McIntosh of Haringey: Let me remove one, I think, marginal issue. The Minister prayed in aid the fact that the Delegated Powers Scrutiny Committee made no comment about the authority or chairmanship of the authority.
Baroness Blatch: I should correct that. It is not what I said. I said that it did not query the numbers of powers taken in the Bill by the Secretary of State.
Lord McIntosh of Haringey: The Delegated Powers Scrutiny Committee has to be concerned with the powers delegated by Parliament. It cannot consider the powers taken by the Secretary of State in that way since those are powers which have been created and not taken from Parliament. If the Minister will look again at the scrutiny committee's report, in particular in reference to Clause 89, she will see that although it expresses concern at the fact that intrusive surveillance is to be authorised by chief officers of police, it feels debarred from making any formal comment on it because it does not involve any use of delegated powers. I do not believe that the powers referred to by the Minister are delegated powers from Parliament. They are not within the remit, therefore, of the Delegated Powers Scrutiny Committee, and could never have been considered by it. The silence of that committee should not be seen as assent to the Government's proposals.
The noble Lord, Lord Renton, attacked my speech rather comprehensively. He said that on reflection I would wish that I had not made it. I shall disappoint him. I do not agree with him that these are simply advisory committees. If the noble Lord reads the Bill carefully, as he usually does, he will see that those committees have extensive powers, although, as I made clear, there are also extensive reserve powers for the Secretary of State. I do not follow his argument that the Home Secretary's responsibility is more closely engaged if he has the power to appoint the chairman from among the core membership. The Secretary of State is closely engaged; it is spelt out in great detail in the Bill, as I made clear. That engagement will not be increased by his ability to impose a member on those 10 people who are the joint core members of the authority.
The Minister raised worries about whether the chairman might be a local authority member or even a police service member. I do not care whether the chairman is a member appointed by the Secretary of State, a police member or a local authority member. I simply care that the chairman should be the best person for the job and should have the confidence of the core membership of the authorities. That is the recipe for effective management and effective steering authorities. What is not a recipe for effective management is that the Secretary of State should have the power to impose a chairman on this body and, quite possibly, someone who would not have commanded the confidence of most members of the body.

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The reality of the situation is that the Secretary of State and the Government are politicising the appointment of the chairman of the two bodies. I regret that very much. I do not do so on the grounds that I want someone of a different political party to be the chairman. I do so because I believe that the chairman should be independently chosen, should be seen to be independently chosen, and should have the confidence of the body of which he is to take the chair. I believe that the matter is of such importance that I should take the opinion of the Committee on it.
4.26 p.m.
On Question, Whether the said amendment (No. 2) shall be agreed to?
Their Lordships divided: Contents, 93; Not-Contents, 158.

Division No. 2

CONTENTS

Addington, L.

Kilbracken, L.

Barnett, L.

Kilpatrick of Kincraig, L.

Beaumont of Whitley, L.

Kirkhill, L.

Berkeley, L.

Knights, L.

Blackstone, B.

McIntosh of Haringey, L.

Blease, L.

McNair, L.

Borrie, L.

McNally, L.

Brooks of Tremorfa, L.

Mallalieu, B.

Bruce of Donington, L.

Mar and Kellie, E.

Carmichael of Kelvingrove, L.

Mason of Barnsley, L.

Carter, L.

Merlyn-Rees, L.

Clinton-Davis, L.

Milner of Leeds, L.

Cocks of Hartcliffe, L.

Molloy, L.

Dahrendorf, L

Monkswell, L.

David, B.

Morris of Castle Morris, L. [Teller.]

Dean of Beswick. L.

Napier and Ettrick, L.

Dean of Thornton-le-Fylde, B.

Nelson, E.

Donaldson of Kingsbridge, L.

Nicol, B.

Dormand of Easington, L.

Palmer, L.

Dubs, L.

Paul, L.

Elis-Thomas, L.

Peston, L.

Falkland, V.

Prys-Davies, L.

Farrington of Ribbleton, B.

Ramsay, B.

Fisher of Rednal, B.

Redesdale, L.

Fitt, L.

Richard, L.

Gallacher, L.

Ritchie of Dundee, L.

Geraint, L.

Robson of Kiddington, B.

Gladwin of Clee, L.

Rodgers of Quarry Bank, L.

Gould of Potternewton, B.

Sainsbury, L.

Graham of Edmonton, L.

Serota, B.

Grenfell, L.

Sewel, L.

Grey, E.

Shepherd, L.

Harris of Greenwich, L.

Simon, V.

Haskel, L. [Teller.]

Stallard, L.

Hayman, B.

Stoddart of Swindon, L.

Henderson of Brompton, L.

Strabolgi, L.

Hilton of Eggardon, B.

Strafford, E.

Hollis of Heigham, B.

Tenby, V.

Hughes, L.

Thomas of Gresford, L.

Hutchinson of Lullington, L.

Tope, L.

Hylton, L.

Turner of Camden, B.

Inchyra, L.

Weatherill, L.

Jeger, B.

White, B.

Jenkins of Hillhead, L.

Whitty, L.

Jenkins of Putney, L.

Williams of Elvel, L.

Judd, L.

Winston, L.

Kennet, L.

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NOT-CONTENTS

Aberdare, L.

Jenkin of Roding, L.

Addison, V.

Johnston of Rockport, L.

Ailesbury, M.

Keyes, L.

Ailsa, M.

Kimball, L.

Aldington, L.

Kingsland, L.

Allenby of Megiddo, V.

Kinnoull, E.

Anelay of St. Johns, B.

Leigh, L.

Astor of Hever, L.

Lindsay, E.

Barber of Tewkesbury, L.

Liverpool, E.

Belhaven and Stenton, L.

Long, V.

Blaker, L.

Lucas, L.

Blatch, B.

Lucas of Chilworth, L.

Bledisloe, V.

Lyell, L.

Blyth, L.

McAlpine of West Green, L.

Bowness, L.

McColl of Dulwich, L.

Brabazon of Tara, L.

Mackay of Ardbrecknish, L.

Braine of Wheatley, L.

Mackay of Clashfern, L. [Lord Chancellor.]

Brookes, L.

Mackay of Drumadoon, L.

Brougham and Vaux, L.

Malmesbury, E.

Burnham, L.

Marlesford, L.

Butterworth, L.

Merrivale, L.

Byford, B.

Mersey, V.

Cadman, L.

Middleton, L.

Caithness, E.

Miller of Hendon, B.

Campbell of Alloway, L.

Mills, V.

Campbell of Croy, L.

Milverton, L.

Carnegy of Lour, B.

Monk Bretton, L.

Carnock, L.

Montgomery of Alamein, V.

Chadlington, L.

Mottistone, L.

Chalker of Wallasey, B.

Mountevans, L.

Charteris of Amisfield, L.

Mowbray and Stourton, L.

Chesham, L. [Teller.]

Munster, E.

Courtown, E. [Teller.]

Norfolk, D.

Cox, B.

Northesk, E.

Cranborne, V. [Lord Privy Seal.]

O'Cathain, B.

Crathorne, L.

Oppenheim-Barnes, B.

Cuckney, L.

Orkney, E.

Cumberlege, B.

Palumbo, L.

Dacre of Glanton, L.

Park of Monmouth, B.

Davidson, V.

Pender, L.

Dean of Harptree, L.

Perry of Southwark, B.

Denham, L.

Peyton of Yeovil, L.

Denton of Wakefield, B.

Pilkington of Oxenford, L.

Devonport, V.

Pym, L.

Dixon-Smith, L.

Quinton, L.

Downshire, M.

Rankeillour, L.

Ellenborough, L.

Rathcavan, L.

Elks, B.

Reay, L.

Elliott of Morpeth, L.

Rees, L.

Elton, L.

Renfrew of Kaimsthom, L.

Erne, E.

Rennell, L.

Fairfax of Cameron, L.

Renton, L.

Feldman, L.

Rotherwick, L.

Ferrets, E.

Saatchi, L.

Fraser of Carmyllie, L.

St. Davids, V.

Geddes, L.

Saltoun of Abernethy, Ly.

Gisborough, L.

Sanderson of Bowden, L.

Goschen, V.

Sandford, L.

Hailsham of Saint Marylebone, L.

Seccombe, B.

Halsbury, E.

Sharples, B.

Harding of Petherton, L.

Shaw of Northstead, L.

Hardwicke, E.

Shrewsbury, E.

Harmar-Nicholls, L.

Skelmersdale, L.

Hams of Peckham. L.

Soulsby of Swaftham Prior, L.

Hemphill, L.

Stewartby, L.

Henley, L.

Stodart of Leaston, L.

Hogg, B.

Strange, B.

Holderness, L.

Strathcarron, L.

HolmPatrick, L.

Strathclyde. L.

Home, E.

Swinfen, L.

Hothfield, L.

Tebbit, L.

Howe, E.

Teviot, L.

Hylton-Foster, B.

Thomas of Gwydir, L.

Inchcape, E.

Trumpington, B.

Inglewood, L.

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Ullswater, V.

Wilcox, B.

Vivian, L.

Willoughby de Broke, L.

Wade of Chorlton, L.

Wise, L.

Whitelaw, V.

Wynford, L.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
4.36 p.m.
[Amendments Nos. 3, 4, 5 and 6 not moved.]
Schedule 1 agreed to.
Schedule 2 [Other provisions about Members of the Service Authorities]:
On Question, Whether Schedule 2 shall stand part of the Bill?
Lord McIntosh of Haringey: I have indicated notice of my intention to oppose the Question only in order to speak on a relatively minor issue and to try to elicit the Government's thinking. I have been approached by the head of one of the regional crime squads who recognises that the regional crime squads will no longer exist. He is concerned about whether they are going to have any say in the appointment of police authority members of the National Crime Squad in particular. I am simply asking whether the Government have given any thought to the issue, which is not covered in the Bill as it is.
It seems to us that there are two possible ways of appointing the individual members, the local authority members of the steering authorities. One would be for it to be done by the local authority associations; the other would be, at any rate in the first instance, for the six members to come from the six regional crime squads. They know each other and may be in a position to make an effective nomination. I take no view on the issue. I recognise in retrospect that I should have given the Minister some warning of the concern which has been expressed to me in case it has not been expressed to her from any other source. However, if she were able to say something about it or, failing that, if she were able to write to me about it, that would be most helpful.
Baroness Blatch: I was about to say that it was an extraordinary proposition to take Schedule 2 out of the Bill, but I shall not have to do that now. On the point raised by the noble Lord, I am sorry that he did not write to me about it because I think we could have dealt with the matter by correspondence, and I shall certainly do that. My understanding is that local authority members of police authorities will be elected from those bodies representing local police authorities and that local authority police authority members will not be appointed by regional crime squads, whatever they are and whoever they are as a collective. However, I shall certainly think about the question the noble Lord has raised today and will come back to him in correspondence.
Lord McIntosh of Haringey: I am most grateful. I could not have asked for more without having given notice. I am sure the noble Baroness will get correspondence from those who are more closely
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involved with the issue. She may prefer to wait, before responding to me, until she has seen what other people have to say. This is not in any sense a party political matter and I shall not be pressing my opposition.
Schedule 2 agreed to.
Clause 2 [General functions of the NCIS Service Authority and NCIS.]:
Baroness Hilton of Eggardon Baroness Hilton of Eggardon moved Amendment No. 7:
Page 2, line 17, leave out ("criminal intelligence") and insert ("intelligence necessary for the prevention and detection of serious crime").
The noble Baroness said: In moving Amendment No. 7, I shall speak also to Amendments Nos. 8 and 9. This series of amendments addresses the specific functions of NCIS and the definition of the matters in relation to crime that they deal with. The intention of these amendments is to define more narrowly the areas of crime dealt with by NCIS and limit them to serious crime rather than the broad, vague definition of "criminal intelligence".
There are three very specific reasons why I feel it is important to define more narrowly the functions of NCIS. First, there is a wide variety of interpretations in the Bill as currently drafted and therefore the functions of NCIS could be subject to individual interpretations and distortions. Because of the powers that NCIS officers will have and the position of NCIS at the top of the hierarchy of law enforcement agencies, it is important that it should have a very precisely defined function.
Secondly, if the function were specifically defined so as to deal with serious crime, it would assist NCIS in its relationship with European police forces under the Convention on the European Information System, which is specifically related to serious crime. Its functions would thus be brought into line with, for instance, Article 2(1) of the Europol Convention and other European conventions referring to extremely serious offences. The present rather loose and vague definition of the functions of NCIS would be brought much more into line with what is required by our European partners.
Thirdly, the explicit mention of "serious crime" in relation to NCIS would put it on parallel grounds with the National Crime Squad, the aims of which are to prevent and detect serious crime. Since these two parallel organisations will be set up under the same administrative structure, it seems appropriate that they should deal with exactly the same range of offences. I beg to move.
Lord Renton: This is primarily a drafting matter. I believe the noble Baroness has made a point that deserves further consideration. The word "intelligence" has a number of different meanings in our language, depending on the context. It may mean "very clever" or it may just mean "information". On page 2, in lines 17 and 18, we find the words "information" and "intelligence" appearing in the same sentence. It reads:
"to gather, store and analyse information in order to provide criminal intelligence".

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If "criminal intelligence" is itself a statutory term of art which by cross-reference one could find a meaning of, this would be a correct way to use the expression; but I believe it could very well read, on the lines suggested by the noble Baroness:
"information necessary for the prevention and detection of serious crime".
instead of:
"information to provide criminal intelligence".
I believe the matter is worth looking at again purely from a drafting point of view.
Baroness Seccombe: It would be helpful if we could define "serious crime" more specifically. One of the problems is that those involved in serious and organised crime are often surrounded by people who are caught up in petty crime, too. If this is a gathering-of-information service, the term "serious crime" may be too narrow a definition.
4.45 p.m.
Baroness Blatch: There is no doubt that the main function of NCIS both now and in the future is to provide intelligence about serious crime. That is what police forces and other law enforcement agencies want, and NCIS exists to provide them with the criminal intelligence support which they need. But the fight against crime must be conducted flexibly and with all the weapons at our disposal. These amendments would restrict that flexibility. We do not think that such a restriction is helpful or desirable. Anything which thwarts the success of tracking down serious crime must be resisted and flexibility will be needed. I shall explain that in a moment.
Although, as my noble friend Lady Seccombe has said, the amendments do not provide a definition of serious crime, I have to assume, in the absence of a definition, that it is intended to apply the definition used in Clause 89(5) of the Bill. The effect of applying this definition to the work of NCIS would be to remove any possibility of its undertaking wider criminal intelligence activities. It would severely limit the support which NCIS could give to local police forces. For example, a group of police forces might be investigating a series of organised crimes which fall outside the definition but where some national co-ordination or analysis of criminal intelligence would be helpful. Intelligence support from NCIS might help to solve these crimes but these amendments would prevent that assistance being given. That cannot possibly be in the public interest.
There is another disadvantage. Under Clause 2(2)(c) of the Bill as presently drafted, NCIS will be able to support police forces and other law enforcement agencies in carrying out their own criminal intelligence activities. The intention is that NCIS will be able to promote common standards for intelligence activities by local forces against any level of crime—that is important—in addition to its specific role in tackling serious crime. This will help to make intelligence activities more effective. These amendments would restrict the role of NCIS and so obstruct this objective.
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The noble Baroness, Lady Hilton, referred to the National Crime Squad. Of course, the National Crime Squad will deal with serious crime; but the Bill as presently drafted enables NCIS to deal with serious crime and—this is the important point—other intelligence which requires national analysis and co-ordination. The amendment will reduce that flexibility. We believe that that is important work for NCIS and we would not wish to inhibit it in any way.
Lord Renton: I should be grateful if my noble friend could help me on this because it is important. It seems to me that the words "information" and "intelligence" are used synonymously here and therefore we do not need to use both. One or other of the words would do—preferably "information".
Baroness O'Cathain: Perhaps I can help on this point. Information can surely be made up of many bits of information which, as a composite, give global intelligence on a matter. For example, it can be the building blocks of a specific problem which will give information about how many people were in a place, what they were doing, and all the rest of it. It will give the overall composite picture; namely, the intelligence. That is how I see the difference. I do see a difference between the two terms and I should be grateful if my noble friend the Minister would tell us whether that is the way it is intended.
Baroness Blatch: That was a helpful intervention from my noble friend, because that is the case. There will be a great deal of information which may be nothing more than strict database which, when put together with other pieces of information, will provide intelligence which may be handed over to a police force to help them in their criminal inquiries or provide parts of a jigsaw which, when put together, will provide intelligence on which to take serious crime into the courts and which will then become part of the evidence. But my noble friend raises a point about the meaning of words. I shall certainly look at it between now and the next stage of the Bill.
Lord Rodgers of Quarry Bank: I put my name to this amendment because I thought it was totally consistent with the spirit in which the Minister moved the Second Reading of the Bill. On Second Reading she spoke very particularly about the new organisations dealing with organised crime. Let me remind her of what she said:
"This Bill represents a further major step forward in the fight against organised crime. It will give the police, working together with other enforcement agencies, the national structures which they need to tackle serious and organised crime"—[Official Report, 11/11/96; col. 789.]
A little later she referred to the police having to deal with "organised and violent criminals". Again, she said,
"But we need to strengthen our capacity to tackle organised crime".
I do not dissent from anything she said then. But it is fair to say that the more we look at this Bill we see that it is a complex, major and important Bill which extends police powers and embodies them in statute in a way

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that has not been done before. It is therefore very important to look very closely at what the Minister said then and what she is saying now. I understand, notwithstanding what she said at Second Reading, that she envisages that the two new agencies will look into all kinds of crime and will not be limited mainly to organised and serious crime, as previously described by her at Second Reading.
Lord Knights: One of my worries over the creation of NCIS and the National Crime Squad is the extent to which local police forces will lose the support that they currently receive from the regional crime squads, which includes intelligence as much as it does investigation. I support the Minister when she says that we must not take away the flexibility that the present drafting gives to the National Criminal Intelligence Service. If it is to be able to say to a local police force, "What you are seeking that we should look into is not serious crime and therefore nothing to do with us", then the local police force has nothing—unless it is to serve its own full-scale criminal intelligence system as well.
This will be the only criminal intelligence system in the country. There will be no regional intelligence systems. Indeed, I understand that they have already gone. It will mean that each police force will have to rely on its own activities, if serious crime is the only thing that the national organisation is prepared to deal with. I believe that it should remain flexible, as the Minister said.
Baroness Blatch: I am grateful for that intervention. The noble Lord speaks with a great deal of experience. But the important point that was then made was about the lacuna which would be left if the operations of the NCIS were restricted in the way that this amendment suggests and we lose the crime squads as well. That kind of collating of information and providing intelligence to local forces to do the local job and pursue crime in their areas, which may or may not include serious crime but crime across boundaries, whether they are force boundaries or regional boundaries, seems to me to be very important.
In reply to the noble Lord, Lord Rodgers, it does not preclude anything that I said at Second Reading. It is an additional function. Flexibility and the additional function of being able to support the work of local police forces would be inhibited if we were to restrict it as the consequence of this amendment.
Lord Thomas of Gresford: I notice that in Clause 102—enhanced criminal record certificates—there is a reference to applications for the issue of certificates for gaming machines, for licences and for societies' lotteries. Are we to assume that that information, as broadly stated as it is in the proposed wording, is to be gathered by a National Criminal Intelligence Service for such purposes as that? Is that a
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proper use of resources? Or is not it proper so to limit the functions of the NCIS to the kind of serious matters to which my noble friend referred?
Baroness Blatch: It is almost impossible to see any crime in a particular category. It is possible that crime involving lotteries may be either very serious—a network of crime—or very localised, in which case it would be a matter for local police forces. It may be that something is going on in various parts of the country which to a local police force may be an isolated incident, but intelligence gathered nationally will provide evidence that there is a network of people operating in that particular activity. So I do not believe that it is right to restrict both the flexibility and the important primary purpose of those bodies, which is to pursue serious crime.
The last constraint, which will be extremely effective, on those bodies will be when they produce their annual reports which spell out what they have been doing in the course of the year. They will not waste their time chasing trivial criminality. They will want to use their time and expertise in helping the police forces when it is appropriate to do so but also in pursuit of serious crime. But with flexibility and their ability to work in support of local police authorities, I believe that the balance is right in the Bill. I believe that this amendment would restrict that flexibility.
Baroness Hilton of Eggardon: I take the point made by the Minister about flexibility but I do not think that this amendment would in any way restrict the flexibility of the NCIS, which will be a scarce resource. Although I take very much to heart the view of the noble Lord, Lord Knights, that it is important to provide support to local police forces, it is a matter of what one sees as serious crime. For instance, I should certainly include burglaries as serious crime and I imagine that that would be the kind of area in which local forces might wish to combine to catch a persistent group of burglars or whatever.
On the other hand, I should want to exclude offences of shoplifting or motoring offences, for instance, which also count as crimes. It might be that some chief constables would want the NCIS to analyse data on such crimes. I should have thought that it was a good thing to protect a scarce resource, which the NCIS will be, from pressure from local forces and that some local concerns should be dealt with by something which is a sophisticated analytical machine.
It was on those grounds that I tabled these amendments. I do not in fact take the point that they would restrict enormously the flexibility of the NCIS in responding to urgent local needs or serious organised criminal activity. I regret that the Minister is herself inflexible on this point, but in the circumstances I withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 8 and 9 not moved.]
Clause 2 agreed to.
5 p.m.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 10:
After Clause 2, insert the following new clause—
THE COMMISSIONER OF NCIS

(".—(1) The Prime Minister shall appoint a Commissioner who shall keep under review the performance of functions under section 2(2), and who shall in particular review the following—

(a) the quality, accuracy and content of criminal intelligence information gathered or stored by NCIS;

(b) the disclosure of such information by members or employees of NCIS; and

(c) the need for the retention of such information by NCIS.

(2) The person appointed under subsection (I) shall be a person who holds or has held high judicial office within the meaning of the Appellate Jurisdiction Act 1876.

(3) The Commissioner shall hold office in accordance with the terms of his appointment.

(4) The Secretary of State shall pay to the Commissioner such allowances as the Secretary of State considers appropriate.

(5) The Secretary of State may, after consultation with the Commissioner, provide the Commissioner with such staff as the Secretary of State thinks necessary for the discharge of his functions.").

The noble Lord said: The wording of this amendment will be readily recognised because it comes directly from the proposals for the commission on intrusive surveillance which are included in Clauses 93, 94 and 95 of the Bill. The reason for taking the precedent of a commissioner (to be appointed by the Prime Minister) who is of high judicial office within the meaning of the Appellate Jurisdiction Act 1876 and all the rest of the provisions in the amendment is because of our concern about the five words in the amendment to which I draw the Committee's attention. The commissioner is intended to be concerned with:
"the quality, accuracy and content of criminal intelligence information … the disclosure of such information by members or employees of NCIS; and … the need for the retention of such information by NCIS".
All the duties and responsibilities of the NCIS are very widely drawn indeed. They are:
"to gather, store and analyse information in order to provide criminal intelligence [and] to provide criminal intelligence"—
information—we will not go back on the question of the wording—
"to police forces … law enforcement agencies".
and government departments. We recognise that is necessary. We recognise that the powers have to be widely drawn if the National Criminal Intelligence Service is to have the flexibility necessary in order to combat the growing threat of serious and organised crime. It is to have powers to gather information about suspects as well as powers to pursue specific lines of investigation leading directly to arrest and conviction. But there must be concerns about the way in which those powers are used. Without in any way taking from the breadth of the powers, the amendment proposes that there should be a commissioner who should have the responsibility of providing an independent review of the issues to which I have referred.
In 1990 the House of Commons home affairs committee carried out an inquiry into the national criminal records system. It heard evidence that criminal records provided to the courts and other agencies were all too often incomplete, inaccurate, out of date or contained material which was not strictly relevant. When we talk of "intelligence information", there must be an even greater risk of inaccuracies and errors because there is no clear definition—as there is in the rules of evidence—about what is and what is not acceptable evidence.
The Data Protection Act 1984 does not cover the point. It exempts the police from complying with the first data protection principle—that is, the principle which requires data users to obtain and process information fairly and lawfully—because the registrar does not have the power to enforce compliance where to do so would be likely to prejudice the prevention or detection of crime.
We are concerned in subsection (1)(a) with the quality and content of criminal information. There are no controls in the Bill on the quality or content of information. It could include, under a malign administration—I do not accuse this administration of being malign in this respect—information about somebody's perceived subversive political activities, their sexual orientation, allegations which have not been tested in court or even information which follows acquittal in court. The Bill just provides for NCIS to process any information which it believes might be useful in preventing or detecting crime. There are no regulations to prevent wholly unreliable speculation or rumour about people who could be innocent or information which, if properly assessed, simply should not be on police files at all.
It is important to ensure that controls are in place; that the intelligence held by NCIS is accurate, complete and up to date; and, as we say in subsection 1(c), that it should be retained for no longer than is absolutely necessary. In all other parts of the criminal justice system there are elaborate rules covering disclosure and retention of information. There are rules in this Bill—for example, Clause 102—in relation to the nature of disclosure for enhanced criminal record certificates. There are conditions under which information can be disclosed from police files which are properly defined, and there is some degree of protection, though I shall return to this point later, as regards the proper application of those powers.
The Home Office circular of 1993 on the protection of children and the disclosure of the criminal background of those with access to children, talked of the conditions under which other relevant factual information could be retained and disclosed. There is no such protection in regard to the intelligence information collected by the National Criminal Intelligence Service. We believe that there should be, as proposed in the amendment, an independent view; that is, the view of a commissioner who must be of high judicial office and appointed by the Prime Minister. He can take a view on the quality, accuracy

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and content of criminal intelligence information, the rules for disclosure and the rules for the retention of such information.
Introducing such a commissioner will not in any way handicap the proper conduct of the work of the National Criminal Intelligence Service. It will simply counteract the possibility of inaccuracy by the National Criminal Intelligence Service or abuse of its powers. I am much more concerned with failure of accuracy than with intentional abuse of powers. In every other part of our criminal justice system and elsewhere in the Bill there is provision for an independent view to be taken. We consider it to be no less than reasonable to provide the same independent review as would be provided by a commissioner under this amendment. I beg to move.
Lord Renton: I am puzzled. I do not see why we need a commissioner as well as the director general referred to in Clause 6, to which I did not hear the noble Lord, Lord McIntosh, refer. If we look at Clause 6 we find in subsection (1),
"NCIS shall have a Director General appointed by the NCIS Service Authority on such terms and conditions as the Authority considers appropriate".
In subsection (2) it says that,
"The Director General shall be chosen by a panel of members of the Authority from a list of persons eligible for appointment which has been prepared by that panel and approved by the Secretary of State".
The noble Lord, Lord McIntosh of Haringey, now wants to drag the Prime Minister into this and say that the Prime Minister shall appoint a commissioner. I am sure that we cannot have both solutions and I should have thought that the one in the Bill was the right one.
Perhaps I may be greatly daring and refer back to the discussion on drafting that we had on a previous amendment. In his new clause the noble Lord used the expression,
"the quality, accuracy and content of criminal intelligence information".
There we have tautology if ever we had it. The noble Lord said "any information"; he wants information. I should have thought therefore that if the new clause is to be introduced it should read, "the content of criminal information gathered or stored by NCIS".
Lord McIntosh of Haringey: I cannot believe that the Minister will want to follow the noble Lord, Lord Renton, down either of those culs-de-sac and perhaps it is appropriate for me to respond straight away.
Clearly an independent commissioner appointed by the Prime Minister is nothing to do with the appointment by the Home Secretary or by the steering authority of a director general. The director general is in managerial, administrative charge of the organisation. The proposed commissioner is an independent check on the quality and accuracy of the information collected and would be responsible also for laying down rules in regard to disclosure and retention.
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In relation to the use of the phrase "criminal intelligence information", if the noble Lord, Lord Renton, reads with his usual assiduity he will discover that we have taken that phrase from other parts of the Bill, in the same way as we have taken all of the references to the appointment and responsibilities of the commissioner from Clauses 93 to 95 of the Bill.
Lord Hylton: Before the Minister replies on this amendment, can he say what are the Government's plans to ensure that information gained by NCIS remains there and is only used for bona fide police purposes? I ask that question because it seems to me that much of the information will be highly sensitive and possibly damaging to people's reputations.
We have all heard of "cheque book journalism". There may be pressures from the media to obtain information when they should not be obtaining it; equally, there could be pressures from commercial organisations which want to find out what information is held. I hope therefore that we can hear what the safeguards are to be so that the information is not improperly disclosed.
Baroness Seccombe: I see the appointment of a commissioner as an extra layer of bureaucracy. When we have important and sensitive information, the fewer people involved the better. There is machinery to ensure that the NCIS is working properly. We must never forget that the thrust of the Bill is to fight sophisticated organised crime. Very often no crime has been committed. Therefore, it is to try to stop crimes being committed that we need a body such as the NCIS.
Lord Thomas of Gresford: I support the amendment. I come back to the point I made earlier concerning the enhanced criminal record certificates. A chief officer of a police force may provide any information which in the chief officer's opinion might be relevant for the purposes described in the statement. Any information in the possession of the chief constable may find its way onto an enhanced criminal record certificate which can be used for employment purposes. With respect, this is not an additional layer of bureaucracy. This is an important safeguard. The amendment seeks to introduce an independent person—independent of the Home Secretary and independent even of the NCIS itself—to deal with.
"the quality, accuracy and content of criminal intelligence information".
My experience is that the accuracy of information that is kept in files may not be guaranteed. I recall a colleague of mine who discovered that in a file concerning him kept not very far away from your Lordships' House he was described as a married man with four children, which did not disturb him, and a Liberal, which did. He had clearly been confused with me. That may have affected his employment prospects and his career. It was just by accident that he discovered this inaccuracy. With the appointment of a commissioner who can act independently, the accuracy of such criminal intelligence information as my life could be checked.
5.15 p.m.
Baroness Blotch: I shall reject the advice of the noble Lord, Lord McIntosh of Haringey, and go down the road of one of the points raised by my noble friend Lord Renton. My noble friend Lord Renton said that the effect of the amendment would be to drag the Prime Minister and yet another layer of bureaucracy into the system. I shall come back to safeguards. I have been drawn by a number of Members of the Committee on to the issue of safeguards and I shall refer to them.
I believe that the arrangements proposed in the amendment would be impractical to operate and would impose a further layer of bureaucracy which could hinder the NCIS's vital contribution to the fight against organised crime. Any new arrangements would be in addition to procedures that already exist in the NCIS. Those include induction procedures for new staff covering duty to use and handle information responsibly and an internal inspection process which reports to the director-general. It is an obligation on the director general—this point was made by my noble friend—to operate in accordance with the provisions of the Act. He will have no alternative. Not only that; the director general will be responsible to the service authority, so there is that layer too. I shall come back to even greater safeguards in a moment.
In considering the amendment, it is important to understand the role of the NCIS. It is not itself an investigating body. The role of investigating will remain with the police, Customs and Excise and other law enforcement agencies. Together they will provide much of the information and intelligence collated and developed by the NCIS. They must be responsible in the first place for the quality, for the accuracy and for the content of the information that they pass to the NCIS. That is where the importance of accuracy of content is concerned. In turn, the NCIS must do all it can to verify the information. It already carefully grades information to take account of its source and its likely accuracy. For example, information provided by a police officer about an event witnessed by the officer would be graded A 1. On the other hand, hearsay information supported by a less reliable source would receive a lower grading. I see no practical way in which the proposed commissioner could check the quality, accuracy and content of the information gathered and stored by the NCIS without going back to the source of the information or the subject of the intelligence report. In addition to the logistical difficulties, there is the risk that in some cases sensitive police investigations against some of the world's worst criminals operating in this country would be jeopardised.
The NCIS is a policing body and provisions in the Bill place it firmly within the controls that apply to the police. That is one safeguard. The Bill extends the role of Her Majesty's Inspectorate of Constabulary to cover the NCIS and envisages a formal complaints procedure for staff in the NCIS based on the current police complaints regime. That regime is open, it contains an independent element in the shape of the Police Complaints Authority and it works well. Any member of the public who has concerns about the way the NCIS has or may have dealt with him will be able to use the
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complaints procedure to address his concerns. Equally, any member of the NCIS who disclosed information when he should not would be dealt with as appropriate through the discipline procedures or the courts. The complaints and disciplinary regime in the NCIS will be established by regulations made by the Secretary of State under Clauses 37 and 38 of the Bill. Those regulations will be laid before Parliament, which is a partial answer to the point raised by the noble Lord, Lord Hylton.
As to legal proceedings, the NCIS is subject to the Data Protection Act, although I take the caveat mentioned by the noble Lord, Lord McIntosh. Some of the Data Protection Act will bite. But where the exemption applies when the NCIS is in pursuit of a serious crime I hope Members of the Committee opposite will support us—that the exemption is important. If there is an exemption which allows it to pursue crime and to carry out its role we should be on the side of the NCIS. Nevertheless, there is the Data Protection Act. An officer gaining unauthorised access to computer material could be prosecuted under the Computer Misuse Act 1990. Its staff could also find themselves liable for prosecution under the Rehabilitation of Offenders Act if they improperly disclose information from which the recipient could impute that someone had had a spent conviction. There is also the possibility that a member of the NCIS using information improperly could be the subject of an action for breach of confidence. A commissioner would not strengthen or improve any of these arrangements.
The need to retain information must be informed by the other information available—for example, about the associates of a person and their activities—and judgments about the relevance of that information at the time or the likely relevance of the information in the future. These are operational decisions which quite rightly rest, as my noble friend said, with the director-general of the NCIS. They are matters which the director-general takes very seriously. The NCIS has a strict weeding policy to ensure that unnecessary information is not stored needlessly. This weeding policy also serves the practical purpose of ensuring that the NCIS is not swamped by information which is being held needlessly. These are not matters for a commissioner.
In opposing the amendment, I am mindful that the Bill makes provision for a commissioner to oversee the authorisation of intrusive surveillance operations and that Security Service activity of this kind is subject to oversight by a commissioner. Comparisons with these other commissioners is not valid. The sole purpose of a surveillance commissioner is to ensure that the proper procedures for authorisation are followed. Similarly, the Security Service Commissioner exists to investigate that warrants permitting the Security Service to enter on or interfere with property have been properly authorised.
The amendment would provide an extra layer of bureaucracy. We certainly believe that it would be impractical. The idea of a commissioner with oversight, delving around within the NCIS for the accuracy of the content when the accuracy of the content is way down

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with the Customs officer, the police officer or the person gathering information and carrying out the investigation is wholly impractical.
The bodies are subject to the National Audit Office, the Rehabilitation of Offenders Act and the Computer Misuse Act. As I have said, they have induction programmes for internal purposes. There are internal inspections and Her Majesty's Inspectorate would externally inspect. There is a formal complaints procedure and the bodies will be governed by the improper disclosure of information regulations. That could result in internal disciplinary measures being taken or legal remedy in the courts.
There are so many safeguards built into the Bill and if one more layer were to be added it would not add to the security of the way in which these bodies carry out their work. We have to strike the right balance. These are very sensitive matters for which oversight by a commissioner provides the best way to ensure that powers may be used properly, but that is not necessary in the case of the NCIS given its role and the other means of ensuring its accountability. In fulfilling the role intended by this amendment, the commissioner would also be duplicating the existing effective and open oversight arrangements that apply to the police and which the Bill would extend to the NCIS. In my view the proposals in this amendment would hinder rather than help the fight against crime.
Lord McIntosh of Haringey: I have made it an assumption all my life that if I am misunderstood in what I say or do it is my fault, but that assumption is being sorely tested today. The misunderstanding of this amendment, including that of the Minister, is so profound that I cannot really believe that it is entirely my fault that I am being misunderstood. Of course it is not an extra layer of bureaucracy. We are simply pointing out the fact that in every other part of the criminal justice system there are proper rules to ensure that evidence, information or intelligence, as the case may be, is properly collected and recorded and that it is accurate and of high quality. There are rules to ensure that information of this kind is only disclosed to those to whom it may be properly disclosed and retained only for the purposes and for the period of time for which it may be properly retained.
It is only in respect of the National Criminal Intelligence Service which, as the Minister said, is not an investigative body, but an intelligence-gathering body, that we have no such rules and no such independent review.
The Minister and the noble Lord, Lord Renton, talked about the role of the director general. It is of course in the interests of the director general, as it is of the Home Secretary, that the National Criminal Intelligence Service should concentrate on information which is of high quality and accurate and its content should be relevant to the purpose. I did not use the word "relevant". The Minister is quite right to say that the relevance of information to an investigation is an operational matter and not a matter for review by a commissioner.
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But the analogy of the commissioner as used for the security service and as proposed for intrusive surveillance, is a very good one and appropriate in this case. It is no good the Minister telling us that the Police Complaints Authority has responsibilities in this area. The problem with the role of the National Criminal Intelligence Service is that it is collecting intelligence which may never come out in evidence. It may never be known to a potential complainant and therefore it may never be available for somebody to take to the Police Complaints Authority. It is behind-the-scenes information.
We are not calling for the general distribution of behind-the-scenes or secret information. We are saying that at the highest level a senior judge appointed by the Prime Minister should have the responsibility for independent review of these highly sensitive activities. It may be that the amendment is defective in the sense that it says that he should,
"keep under review … the quality, accuracy and content of criminal intelligence … disclosure [and] retention".
Perhaps it would be better for the amendment to say, "that he should keep under review the arrangements for ensuring that there is high quality, accuracy and content; that there are proper rules for disclosure and retention and that those rules are adhered to". On that basis I shall certainly not be pressing this amendment because I believe that I can draft it more appropriately at a later stage.
It may be some time since the Minister has been involved with further education. I can assure her that the thrust of the Further Education Funding Council in England and Wales is heavily towards what it calls "quality assurance". By that it does not just mean that inspectors go in and look at the quality of the teaching; it means that there is an independent quality committee of each governing body which takes on itself the responsibility of ensuring that there are proper rules to protect the quality of educational provision and the proper fulfilment of promises made to students and ensuring that they are kept. That is what a commissioner would do and that is why he would not be an additional layer of bureaucracy, but a real help for the operations and responsiveness of the National Criminal Intelligence Service. In view of the possibility that we might come up with better drafting—
Baroness Blatch: I am grateful to the noble Lord for giving way. Before he withdraws the amendment perhaps I may make two points. The noble Lord might care to look up Clause 28. That clause provides for a code of practice which will govern the functions. It seems to me that that is an appropriate place to set out the ways in which those functions should be carried out to which the director general and the NCIS will be held. The noble Lord may like to reflect on that when he considers redrafting the amendment.
Perhaps I may also say to the noble Lord, Lord Thomas, that Clause 104 provides a safeguard for inaccurate information held on certificates, which I know has been a particular concern of his. It reads,

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"Where an applicant for a certificate under any of the Sections 100 to 103 believes that the information contained in the certificate is inaccurate he may make an application in writing"
and a new certificate can be issued. That is an important safeguard and a particular concern expressed by the noble Lord, Lord Thomas.
Lord McIntosh of Haringey: Perhaps I may respond to that part of the intervention which was addressed to me. I was aware of the code of practice. But the point about a commissioner is for ensuring not only that there is the equivalent of a code of practice, but that there is also an independent view as to whether the code of practice is being adhered to. That is the addition which a commissioner provides as the Government recognise in other comparable circumstances. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clauses 3 and 4 agreed to.
Clause 5 [Annual reports]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 11:
Page 4, line 22, at end insert
("(4) The Secretary of State shall lay before both Houses of Parliament a copy of the report.").
The noble Lord said: In moving this amendment I wish to speak also to Amendment No. 42, which is the comparable amendment for the National Crime Squad. These are very simple amendments indeed and follow a well-trodden route in your Lordships' consideration of legislation.
What we are seeking to do by adding the provision that,
"The Secretary of State shall lay before both Houses of Parliament a copy of the report"
is to enable Parliament properly to exercise its important function as the ultimate democratic body to which the NCIS can be held responsible. The Bill makes clear that the Secretary of State will receive a copy of the report, but it does not make clear what will happen to it. There are provisions for publication,
"in such manner as appears…appropriate"
to the service authority. As regards the director general's report, there is provision for publication in such a manner as appears appropriate to him.
I do not know exactly what "such manner" means. It could mean restricted, summarised or selective publication. It could mean publication to a relatively small number of people. Surely, the proper protection is that a report which has been received by the Secretary of State, the police authorities and all other interested parties listed in Clause 5(3) should also be laid before Parliament. I beg to move.
5.30 p.m.
Baroness Blatch: The noble Lord, Lord McIntosh, said that it was not known what would happen to it. Clause 5 spells out in considerable detail what happens. I believe that the noble Lord refers to the nature of the report as opposed to what happens to it. Copies of the report go to the Secretary of State, each police authority
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for an area in Great Britain, each police board within the meaning of the Police (Scotland) Act 1967 and the Police Authority for Northern Ireland. Copies also go to the chief officer of police of each police force in England and Wales, the chief constable of each police force in Scotland, the Chief Constable of the Royal Ulster Constabulary, the National Crime Squad Service Authority, the Director General of the National Crime Squad and the Commissioners of Customs and Excise. That can be reversed. The National Crime Squad is also required to send copies of its reports to the same list of persons. They send copies of reports to each other.
Clauses 5 and 50 as drafted mirror the arrangements for the publication of annual reports by police authorities, except that they also require service authorities to send copies of their annual reports to police authorities, chief officers of police, each other and the director general of each other's services. Police authorities are required to send their annual reports only to the Home Secretary. There is no requirement for the Home Secretary to lay those authorities' reports before Parliament. The amendments would require the Home Secretary to lay the annual reports of both service authorities before Parliament. That would imply that he was accountable to Parliament for the service authorities in a way different from his position in respect of police authorities. As we have been debating in another context, that is simply not the case. The Secretary of State has a legitimate interest in the work of both authorities, but he is not accountable for their reports. This would be inconsistent with the Government's intention that the regime governing service authorities should, so far as is consistent with their national status, be the same as the regime governing police authorities.
That said, I should make it absolutely clear that the reports will be published and that copies will be placed in the Libraries of both Houses of Parliament. We believe that this is the right approach and is consistent with the independent status of the service authorities and the regime governing police authorities generally. I have given an assurance that they will be widely available, and I hope the noble Lord accepts that the particular route that he chooses is inappropriate.
Lord Rodgers of Quarry Bank: I listened carefully to what the Minister said. She drew a precise parallel with the police authorities. I do not believe that that parallel is sustained by the very nature of the two organisations that we are discussing. In order to reflect further on what she has said, I should like to ask the Minister a question. The Minister said that these two bodies were not accountable to the Home Secretary. Did she mean that it would be improper for this place and another place to debate these reports? These reports are to be placed in the Library and will receive wide distribution. Does she imply that it would be wrong for Parliament to debate them? If it is right that Parliament should debate them, surely in saying that these documents have the same status as the reports of police authorities she draws a parallel which is not precise.
Baroness Blatch: To my knowledge, I do not believe that there is any restriction on what is debated in this

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place. If anyone wants to initiate a debate it is for the usual channels to decide how it can be fitted into the programme. The proposition in the amendment is that there should be a formal laying of these reports before Parliament. The important principle is that they should be publicly available documents, and I have given an assurance that that will be the case.
Lord McIntosh of Haringey: I believe that we are pretty close. If I accept the assurances of the Minister, as I do, that they will be publicly available, they can hardly avoid being publicly available if they are to be sent to all of the people set out in the clause, and that they will be published in full without excisions (the Minister nods her assent) there is not much difference between laying them before Parliament and placing them in the Library. As the Minister has rightly said, what is debated is up to Parliament. It is not for the Home Secretary to choose what is debated. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 5 agreed to.
Clause 6 [Appointment of Director General]:
Baroness Hilton of Eggardon Baroness Hilton of Eggardon moved Amendment No. 12:
Page 5. line 5, leave out subsection (5).
The noble Baroness said: In moving Amendment No. 12 I should like to speak also to Amendment No. 44. These are intended as probing amendments which pick up a question that I raised at the end of my winding up speech on Second Reading. I seek clarification of an assurance by the Minister that it is not the intention to appoint non-professional, non-career police officers as directors general of either the NCIS or the National Crime Squad. The subsection that is sought to be deleted is that which allows for the director general to take an oath as a constable. That implies that the director general of the NCIS may not be a serving police officer but may be a former member of MI5, or the director general of the National Crime Squad may be a retired Army officer. That would take us back to the bad old days of chief constables being drawn from the ranks of the military, or even the Navy on occasion. I formally seek an assurance from the Minister that it is not intended to appoint as Director General of either NCIS or the National Crime Squad someone who is not a professional, career police officer within the civilian Police Service. I beg to move.
Baroness Blatch: I understand that the purpose of the amendments is to ensure that only a serving chief constable can be appointed director general of the National Criminal Intelligence Service or the National Crime Squad. If that is the only point at issue here I believe that the amendments are unnecessary.
I am a little disturbed by what I have heard. Certainly, I will remedy the position if necessary. I wrote to the noble Lord on 19th November. I intended that that should be for the benefit of all Members of the House. I placed copies of my letter in the Library. I said:
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"Lady Hilton also asked whether Clauses 6(5) and 51(5) would enable someone other than a police officer to become the Director General of NCIS or the new National Crime Squad. Let me assure you that the legislation as drafted does not permit this and it is not the Government's intention to appoint someone other than a police officer to either role.
Clauses 6(3) and 51(3) restrict eligibility for appointment as the Director General of either service to a person who must be:

(i) a chief officer of police in a police force in England and Wales. That is the chief constable of a police force outside London; the Commissioner, an Assistant Commissioner or a Deputy Assistant Commissioner in the Metropolitan Police; or the Commissioner of the City of London Police;

(ii) a chief constable of a Scottish police force or the chief constable of the RUC;

(iii) eligible for promotion to one of these posts or ranks".

The Bill makes clear that a person will be eligible for appointment as director general only if he holds the rank of chief constable in a police force in Great Britain or in the Royal Ulster Constabulary.
Even with those amendments, the provisions of Clauses 6(5) and 51(5) are still necessary. In order to take up an appointment as director general, a chief officer will have left his previous force. Therefore, the particular clause which will be removed if the amendment is accepted is important, because he or she will not have the powers of a constable unless the Bill specifically provides them. To take another example, a chief officer from a Scottish police force or the Royal Ulster Constabulary would not have the powers and privileges of a constable in England and Wales unless the Bill made specific provision for that to happen. Both directors general would require such powers in order to perform their full duties and manage the services for which they were responsible. If the noble Baroness does not have the letter I will ensure that immediately after this session she is provided with a copy.
Baroness Hilton of Eggardon: I am grateful to the Minister for that assurance. When I joined the Metropolitan Police—if I may reminisce for just a second—we took an oath which meant that we were constables within our police force only and within five miles of any royal palace, which included Scottish royal palaces. I believe that the Police Act 1964 changed that so that we became constables throughout England and Wales. I wonder what is the situation for a director general appointed from a force in England and Wales in relation to Scotland. Presumably, as serving officers in England and Wales, such a person can carry out his duties throughout England and Wales. Will he take an oath in order that he can perform his duties in Scotland and Northern Ireland so that the situation is now reciprocal? I am asking this merely as a matter of complication. Perhaps they would all have to take an oath to operate in both areas.
Lord Knights: I am not sure whether I should intervene, but on my reading of the Bill if a chief officer of a police force within England or Wales seeks to become the director general, he will have to retire or resign from his force. He is therefore no longer a constable. He will take up the appointment without

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being a constable. Unless he is appointed a constable, he cannot be given the rank of chief constable, which is also provided for in the Bill.
Baroness Blatch: The noble Lord is spot on. We have subsection (5) to vest in that person the rank necessary to do the job.
Baroness Hilton of Eggardon: I am still slightly puzzled, because if one moves from one force to another one does not have to retake an oath as a constable. That is surely the situation if one is moving from a force in England and Wales to become director general which, as I understand it, is effectively to become a chief constable. I am still slightly puzzled about the matter of the oath, but I am grateful to the Minister for her assurance which I wanted to flesh out by putting down the amendments. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blatch Baroness Blatch moved Amendment No. 13:
Page 5, line 12, at end insert—
("( ) The Director General shall hold the rank of chief constable.").
The noble Baroness said: I shall speak also to Amendments Nos. 14 to 18; 20 to 23; 45 to 49; 51, 53, 55 to 58; 144 and 145.
This large group of amendments seeks to achieve a very simple purpose. They ensure that senior police officers who are permanently appointed to the National Criminal Intelligence Service or National Crime Squad will retain a specific police rank. In this way they put beyond any doubt the original intention of the Bill that the directors general will hold the rank of chief constable and that only assistant chief constables, or those eligible to be appointed to that rank, will be permanently appointed to other senior police posts in the two services.
The vast majority of the police officers serving in the National Criminal Intelligence Service and the National Crime Squad will be officers engaged on a period of temporary service away from their force. They retain all the powers and privileges of a constable as if they remained a member of their force and they have a right of return to their home force.
This arrangement will generally not be possible for senior police officers. It is impracticable for a chief constable to have a right of return to his previous force—the point made by the noble Lord, Lord Knights. His former post will have been filled. The same is generally true for other senior police officers where there are a limited number of assistant chief constable posts—perhaps only one—and it would be impracticable for officers to have a right of return. That is why the Bill makes provision for them to be permanently appointed to either service.
But because they break their ties with their previous force, it is essential to make clear in the Bill that they continue to hold a specific police rank. The directors general of each service and their senior colleagues are responsible for the overall direction and control of all the
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staff, including the police officers on temporary service. It must be clear for the good management of both services that the permanent senior police officers have a specific rank. It will also be important for some operational purposes, such as authorisations under PACE, that the rank of senior police officers is beyond doubt.
Amendments Nos. 13 and 45 provide that the director general of each service shall hold the rank of chief constable. Amendments Nos. 14, 15, 47 and 48 provide that the only other permanent police appointments will be senior officers of assistant chief constable, or equivalent rank, or eligible for appointment to that rank. Officers appointed in such circumstances will hold the rank of assistant chief constable.
I should mention that one effect of the draftsman's approach to these amendments is that officers on temporary service who were covered by Clause 9(2)(a) in the Bill are now covered by Clause 9(2)(b). Permanent police members who were covered by Clause 9(2)(b) are now dealt with in Clause 9(2)(a). The same applies in Clause 54. Amendments Nos. 17, 20, 22, 46, 51, 55, 57, 144 and 145 are all necessary to reflect this change in the order of Clauses 9 and 54. The other amendments are consequential upon these changes. For example, subsection (10) of both Clause 9 and Clause 54 which clarifies the position of senior officers in the Metropolitan and City of London forces, is no longer necessary as a result of these amendments.
These amendments will ensure that senior police officers within both services will have the rank and authority which they need to perform their duties.
I commend them to the Committee. I beg to move.
5.45 p.m.
Baroness Hilton of Eggardon: I thank the Minister for that explanation. I welcome the fact that the problem of their return to their forces of officers appointed to central duties has been recognised at last, because for many years there have been problems with officers seconded to the Home Office who have had no home base to which to return. I therefore welcome this series of amendments.
On Question, amendment agreed to.
Clause 6, as amended, agreed to.
Clauses 7 and 8 agreed to.
Clause 9 [Other members of NOS]:
Baroness Blatch Baroness Blatch moved Amendments Nos. 14 to 18:
Page 6, line 8, at beginning insert ("he is appointed to the rank of assistant chief constable in NCIS and he met the requirements of subsection (2A) immediately prior to his being appointed, or
(b)")
Page 6, line I I, leave out from ("applies") to the end of line 14 and insert—

("(2A) A person meets the requirements of this subsection if—

(a) he holds the rank of assistant chief constable or a higher rank in a police force in Great Britain or in the Royal Ulster Constabulary,

(b) he holds the rank of commander or a higher rank in the metropolitan police force or in the City of London police force, or

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(c) he is, in accordance with regulations under section 50 of the Police Act 1996, section 26 of the Police (Scotland) Act 1967 or section 25 of the Police Act (Northern Ireland) 1970. a constable eligible for appointment to the rank of assistant chief constable or commander in any of the police forces, or in the Constabulary, mentioned in paragraph (a) or (b).").

Page 6, line 15, leave out ("to (7)") and insert (", (6) and (7)").
Page 6, line 16, leave out ("(2)(b)") and insert ("(2)(a)").
Page 6, line 18, leave out from "("(c)") to ("shall") in line 19.
On Question, amendments agreed to
Baroness Hilton of Eggardon Baroness Hilton of Eggardon moved Amendment No. 19:
Page 6, line 24, at end insert—
("( Before determining any terms and conditions of an appointment under subsection (1)(b) which do not relate to any matters mentioned in subsection (I) of section 61 of this Act, the NCIS Service Authority shall consult persons whom the NCIS Service Authority considers to represent the interests of police members or prospective police members of the NCIS.").
The noble Baroness said: The amendment's intention is to provide for consultation with the various police representative organisations, such as the federation, on the particular conditions of service of NCIS officers on matters such as hours, leave and their personal equipment, clothing and so on. The intention is that they should be subject to the PNB before they are determined. As currently drafted, the Bill makes no provision for consultation with the police staff associations on their various terms and conditions, such as length of probation, job descriptions, appraisal, grievance procedures, and so on. Since police officers cannot of course take industrial action, it is all the more essential that there should be a statutory obligation to consult before conditions are drawn up. I beg to move.
Baroness Blatch: The Government recognise the importance of consulting the police staff associations about the terms and conditions on which police officers are employed by NCIS and the National Crime Squad. For that reason paragraphs 73 to 75 of Schedule 9 extend the remits of the Police Negotiating Board and the police advisory boards to NCIS. The Government believe that this provides adequately for consultation with the police staff associations. It also means that police officers in NCIS are in the same position as their colleagues in police forces when it comes to collective consideration of their terms and conditions.
This amendment would extend consultation beyond the areas already covered by the remit of the Police Negotiating Board. Section 61 of the Police Act 1996 defines this as the consideration of hours of duty; leave; pay and allowances; pensions; and the issue and return of police clothing, personal equipment and accoutrements. This remit is adequate for the police service and is, in the Government's view, adequate for NCIS. We see no reason to make a special case of NCIS.
There is no need to put NCIS in a different position from the police service by placing a duty on the service authority to consult the staff associations on
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other terms and conditions such as probation, job descriptions and grievance procedures. The Bill already provides for police members of NCIS to be members of staff associations. This would be pointless if we did not intend the police staff associations to be fully involved in representing their members' interests. And, in practice, NCIS will have no option but to consult the police staff associations. They are the collective voice of potential police members of NCIS, all of whom will need to be satisfied that the terms and conditions on which they are to be employed are satisfactory. I would remind the Committee that NCIS will rely on seconded police staff who will be volunteers. If the terms and conditions that NCIS wishes to impose are unsatisfactory, then these officers will not volunteer.
In addition to questioning the need for this amendment, I am concerned that, as drafted, it would have the undesirable and inappropriate effect of requiring the NCIS service authority to consult the relevant police staff association about the terms and conditions of each individual, not just the generality of the terms and conditions applying in NCIS. Individuals' salary or job description are properly matters for their employer to determine not for the police staff associations to decide or negotiate.
The Bill already makes appropriate provision for consultation, which we regard as important, with the police staff associations. As a result this amendment is unnecessary. I hope the noble Baroness will agree not to pursue it.
The Bill already provides for police members of the NCIS to be members of staff associations. This would be pointless if it did not intend the police staff associations to be fully involved in representing their members' interests and, in practice, NCIS will have no option but to consult the police staff associations. The police staff associations are the collective voice of potential police members of the NCIS, all of whom will need to be satisfied that the terms and conditions on which they are to be employed are satisfactory.
I would remind the Committee that the NCIS will rely on seconded police staff who will be volunteers. If the terms and conditions that the NCIS wishes to impose are unsatisfactory, then these officers certainly will not volunteer.
In addition to questioning the need for this amendment, I am concerned that as drafted it would have the undesirable and, I believe, inappropriate effect of requiring the NCIS service authority to consult the relevant police staff association about the terms and conditions of each individual, and not just the generality of the terms and conditions applying in the NCIS. Individuals' salaries or job descriptions are properly matters for the employer to determine and not for the police staff associations to decide or negotiate.

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The Bill already makes appropriate provision for consultation, which we regard as very important, with the police staff associations. As a result, I believe that the amendment is unnecessary and I hope that the noble Baroness will not press it.
Baroness Hilton of Eggardon: I am grateful to the Minister for that exposition. It certainly was not intended that it would apply to the conditions of individual officers. I take that on board, although there might have been some scope for some additional provision for consultation. In the circumstances, I withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blatch Baroness Blatch moved Amendments Nos. 20 to 23:
Page 6, line 25, leave out from beginning to ("at") in line 26 and insert—
("(6) A police member to whom subsection (2)(b) applies shall cease to he a member of NCIS").
Page 6, line 33, leave out from ("NCIS") to end.
Page 6, line 35, leave out ("within subsection (2)(b)") and insert ("to whom subsection (2)(a) applies").
Page 6, line 43, leave out subsection (10).
On Question, amendments agreed to.
Clause 9, as amended, agreed to.
Clause 10 agreed to.
Clause 11 [Reports by Director General to the Authority]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 24:
Page 7, line 7, leave out ("general").
The noble Lord said: This amendment, together with the relevant amendment in Part II, which is Amendment No. 59, is intended to probe the meaning of the word "general" in the sentence,
"The Director General of NCIS shall … submit to the NCIS Service Authority a general report on the activities of NCIS".
The word "general" is not used in Clause 5 when the service authority, after the end of each financial year, issues a report on the carrying out of its functions during that year. My puzzlement, I suppose, is a puzzlement about the English language. Is the word "general" supposed to be widening the scope of the report so that it covers everything, or is it restricting the scope of the report so that it cannot cover particular matters? It is unclear to me. I dare not tempt the noble Lord, Lord Renton, but perhaps he knows in which of these senses "general" has been used in the past in legislation. I simply do not understand it.
Lord Renton: As the noble Lord mentions it, I have always regarded it as leaving out unnecessary detail.
Baroness Blatch: That may come in very handy for me to use in a moment. Clauses 11 and 56 were drafted to ensure that the directors general of NCIS and the National Crime Squad were subject to the same duty to report annually on the activities of the services they manage as chief constables after a report on the policing of areas covered by their forces.
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Section 22 of the Police Act 1996 requires chief constables to prepare a general report. The Government's intention is that the two directors general should have to prepare the same kind of report as chief constables and that is why Clauses 11 and 56 also refer to a general report. The approach is consistent with the Government's wish to ensure that the regime governing NCIS and the National Crime Squad is the same regime as that governing police forces wherever this is possible, given the national nature of NCIS and the National Crime Squad.
The intention of the word "general" also helps to clarify the meaning of the provision. A report should be general in the sense that it covers the full range of activities of the force or service in question. It could also be general in the sense that it does not deal with individual cases or matters that are operationally sensitive. I now invoke the phrase that my noble friend has just used and that is "unnecessary detail" because that can come in other forms. Particular reports can be commissioned on specific aspects of a body's work.
It seems to me that the intention of the legislation is clearer if the word "general" is retained. I see no reason to require the directors general of NCIS and the National Crime Squad to report in a different way from their chief constable counterparts. In the interests of clarity and consistency, therefore, I hope that the noble Lord will not wish to press the amendment.
Lord McIntosh of Haringey: It may be that that reply is caviar to the general in the sense that some of it may be wasted on me. I accept the point that it is clearly desirable to be consistent with the consolidated Police Act of 1996, but it still does not make very good sense. If the Minister wants to say, as the noble Lord, Lord Renton, wants to say, that it excludes unnecessary material, then I think the noble Baroness should say so. If it is intended that it should exclude, for example, information about ongoing investigations or matters whose inclusion would damage the operations of the organisation, then I think that should be made clear. The advantage of being more precise would be that it would then be possible to say that unless these reports referred to ongoing investigations, or unless they referred to matters which should in the interests of security be withheld, they should be comprehensive reports. That conclusion would also apply, I imagine, to the Police Act of 1996, but I am not prepared to fight about that at this time. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blatch Baroness Blatch moved Amendment No. 25:
Page 7, line 8, at end insert ("during that year").
The noble Baroness said: In speaking to Amendment No. 25, I shall also speak to Amendments Nos. 28, 40, 41, 43, 50, 60, 64, 86, 138 to 141. In speaking to this list of technical amendments in Clause 11, I also speak to, as I have said, the other raft of amendments. With the exception of Amendments Nos. 40, 50 and 141, they are required to ensure clarity and consistency of drafting throughout the Bill, which I hope will please my noble friend Lord Renton. Amendments Nos. 40 and 50 are

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necessary to correct references to other clauses in the Bill. Amendment No. 141 extends Section 65(a) of the Local Government Finance Act 1988, inserted by Clause 3 of the Local Government Ratings Bill at present before Parliament, to the NCIS and National Crime Squad service authorities. Reference to Section 65(a) is necessary to ensure that NCIS and the National Crime Squad service authorities are liable for non-domestic rates. I beg to move.
On Question, amendments agreed to.
Clause 11, as amended, agreed to.
Clause 12 agreed to.
Clause 13 [Officers and employees]:
Baroness Hilton of Eggardon Baroness Hilton of Eggardon moved Amendment No. 26:
Page 7, line 34, at end insert—
("( ) Where the Authority seeks to appoint persons under this section or section 14 below, it shall so far as practicable appoint persons who are at the time of their appointment employees of police authorities where such persons fulfil the requirements for the post.").
The noble Baroness said: This is urging, one hopes, good management practice on these new organisations rather than perhaps something that is appropriate to go on the face of the Bill. There are many people currently employed by regional crime squads and the forerunner of NCIS, as it currently exists, who are employees of local police authorities or employees of the Metropolitan Police civil staff. It is hoped that some expression of good intentions might arise as a result of that, in that those who have great expertise in the field of crime analysis, crime intelligence and converting crime information into crime intelligence could be appointed to the new authorities by some more expeditious route than might be arrived at by advertising all the posts and doing a general trawl in the first place, as is normal Civil Service practice. The amendment is therefore intended to assist by protecting the experience, knowledge and expertise of a particular group of people who will be most profoundly affected by the changes that will be brought about by these clauses of the Bill. I beg to move.
6 p.m.
Lord Renton: Although there is nothing in the Bill to prevent the appointment of such people, I believe it would be dangerous to insert this amendment. There might be civil servants in the Police Division of the Home Office who could be very useful doing this work. Indeed, there might be people who have had police experience in the Commonwealth or elsewhere abroad who might be able to make a special contribution. If we narrow the measure in this way, we may be restricting the talent that will be required.
Baroness Blatch: The proposed amendments to Clause 13 and Clause 57 seek to restrict the service authorities for the two services to recruiting officers, employees and clerks from among the employees of police authorities where practicable and where they meet the requirements of the post. I should also point out that the proposed amendment to Clause 57 is defective because the National Crime Squad will
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appoint its clerk under Clause 58, not Clause 14. However, I do not use that as an argument against the amendment.
The Government believe that it would be totally unacceptable, as my noble friend said, to impose such an artificial restriction on the service authorities in deciding whom to employ. The service authorities will be subject to a number of local government enactments which already apply to the police authorities. Section 7 of the Local Government and Housing Act 1989 requires authorities to appoint their staff on merit. That section will be applied to NCIS and to the National Crime Squad Service authorities through the application of Section 21 of the Local Government and Housing Act 1989.
There may indeed be occasions when candidates from police authorities will demonstrate that they are the best person for the job and will bring valuable experience to the post. I expect that to happen more often than not. However, equally, a candidate with no police authority experience may be able to demonstrate skills and experience that the service authority considers make that person the most suitable candidate for the job. The service authorities must be able to select the best candidates. That is consistent with the statutory requirement to appoint on merit. There can be no possible justification for attempting to restrict the pool of potential recruits in the way proposed. That is not to say that we are not sympathetic to the point that the noble Baroness makes; namely, that there is a pool of expertise, which I believe will certainly be drawn upon by the service authorities.
Baroness Hilton of Eggardon: I am grateful to the Minister for that final assurance, which was all that we sought to achieve through the suggested amendments. I believe that they were not appropriate to appear on the face of the Bill in any case. We were attempting to cover the immediate short-term bridging between the current set-up and the future set-up and provide some crumb of comfort to those who will be greatly disrupted by the new measures. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 13 agreed to.
Clauses 14 to 16 agreed to.
Clause 17 [Power to issue levies]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 27:
Page 8, line 20, at end insert—
("( ) The Secretary of State shall, in respect of each financial year in which an order under subsection (2) above applies, satisfy himself that the resources available to each police authority are adequate wholly to meet the amount of the levy without adversely affecting the level at which other police services are provided by that police authority.").
The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 63, which is the comparable amendment in Part II of the Bill. I have not checked to see whether it cross-references correctly to the other clauses.
This is a matter of very great importance, although I shall try not to detain the Committee any longer than I have to. The current budget of NCIS, set up since

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1992 on executive arrangements—the polite way of saying, "without statutory authority"—is approximately £25 million a year. So it is a great deal of money. That comes from a Home Office Vote different from that which supports the activities of local police authorities, an arrangement which has been in place since the new police authorities were set up following the 1995 Act.
It is now proposed that, from April 1988, NCIS will be funded through a levy on police authorities. The Committee will recall that this was one of the reasons why we were dissatisfied, and still are, with the balance of membership of the service authority for the National Criminal Intelligence Service.
There is no assurance that the resources that are necessary for the National Criminal Intelligence Service or the National Crime Squad, in the former case provided from a separate Home Office Vote, will not be in competition for funding with other police responsibilities. The current jargon phrase used is "top slicing". We understand that the expenditure required for NCIS and the national crime squad will be top sliced from the funding provided by the Home Office to local police authorities.
It is very difficult to decide how the problem should be addressed. There can be no doubt that it has to be addressed. We have to be sure somehow that there is no threat to other policing activities as a result of this change in the funding of these two national bodies. Some people would argue that they should continue to be financed by central government. A rational case can be made for that. It would be a more straightforward funding route than the one proposed in the Bill and which the Minister explained in her opening remarks at Second Reading. However, these amendments do not go that far. We may be wrong and we may have to return to the matter, but all we are saying is that the Secretary of State has to satisfy himself—not even satisfy Parliament; that is how modest we are—that the resources available to each police authority are adequate wholly to meet the amount of the levy without adversely affecting the level at which other police services are provided by that police authority.
Under Schedule 3 the Secretary of State's approval is required before the total amount of the levies is agreed. So the Home Secretary has the ultimate power to control the size of the levy. It is not the local authorities which have that power. But, for example, if the Secretary of State decides that, for whatever reason, good or bad, there should be growth in real terms in the expenditure of NCIS or the National Crime Squad, then, unless other provision is made, it is the council tax payers who will have to meet that cost, not the Secretary of State—although it is the Secretary of State who will have to make the decision. Therefore we must resolve the issue of funding if we are to have a proper division of responsibility between the Secretary of State and the local police authorities.
There could be considerable differences. There are considerable problems which need to be resolved. What will be the approximate size of the respective budgets of NCIS and the National Crime Squad? Will they be 10 per cent. of the present police budget? Will they be
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5 per cent. of it; or 1 per cent? It is very difficult to work that out on present information. What will be the basis of the levy? Will it be on a population basis, a council tax basis or on some calculation of the level of crime? Will the transitional grant cover all the additional costs set out in the financial memorandum? It is set out as being £1.65 million. How will those estimates be arrived at, and what will be the effect on local police authority finances?
This is partly a probing amendment to get the answers to the questions that I have posed, and partly far more than a probing amendment: it is a demand to government that they should properly resolve the issue of resources for these important and welcome new bodies. At the moment the transfer of financial responsibility from the Home Office to local police authorities is not adequately explained in the legislation. The safeguards which are necessary to protect other police activities have not been provided in the Bill. I beg to move.
Lord Dixon-Smith: I have some sympathy with the questions that the noble Lord, Lord McIntosh of Haringey, asks. That said, I am not sure that I have a great deal of sympathy with the solution that he expounds.
I have always assumed—and I hope my noble friend the Minister will assure me of this—that the current funding for NCIS will be transferred initially to the normal Home Office police grant. To that extent the existing funding will not affect the present situation with regard to funding for current police authorities. The regional crime squads are already funded through the central police grant, so to that extent what is happening here is that the funding is being clawed back from the police authorities and going to what will be a national crime squad instead of to a regional crime squad. So the actual changes in service funding levels probably will be very small at the operational police authority level.
If this is the way it is to be done, it is effectively top slicing. Even if the police authority is required to send its levy back it is effectively top sliced off it. Given that that is happening, to expect that that money can be taken back without any impact on the services provided by a particular police authority at all times is an unreasonable expectation.
I have some experience in dealing with police authorities from time to time, and there are, as the saying goes, police authorities and police authorities. They all try extremely hard—and I defer to none in my admiration for them—but some are better than others. It may well be that from time to time an individual authority could find itself marginally embarrassed by its levy in one particular year. It should be noted that the levy is subject to a great deal of consultation with the police authorities before it is finally agreed, but an individual authority could well find itself marginally embarrassed. We are not talking about a vast sum of money in relation to the totality of the budget, but it may find itself marginally embarrassed at some point as a result of the particular way it chooses to allocate its resources. We should not deny the police authorities that right.

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I agree that the whole question of funding needs further definition and tightening, but I do not accept that this amendment is at all appropriate as a way of taking the matter forward.
6.15 p.m.
Baroness Blatch: I am grateful to my noble friend who again speaks with enormous experience, not only at local government level but as having been chairman of one of the local authority associations.
I can see that the intended purpose of Amendments Nos. 27 and 63 to Clauses 17 and 61 is to protect police authorities from excessive increases in the costs of NCIS and providing the services of the current regional crime squads.
I recognise that police authorities in England and Wales are justifiably concerned that they may face levies for these services which reduce their ability to fund necessary local policing. But the Government are not persuaded that these amendments are necessary for the purpose and indeed they could have undesirable effects.
The Bill already safeguards the interests of police authorities and makes provision for an informed decision about the split between funding for local policing and these two national services. First, paragraph 1 of Schedule 3 gives the police authority members of the two service authorities the dominant voice in determining the levies. Secondly, paragraph 2 requires the Secretary of State to consult representatives of the police authorities before deciding whether to approve the proposed levies. In practice, the provision in paragraph 2 will be implemented by creating a tripartite body to advise the Home Secretary on what level of levy is appropriate.
In view of this I believe that the proposed amendments are unnecessary. Not only are they unnecessary but they are impractical and they have undesirable consequences. The amendments to Clauses 17 and 61 would require the Home Secretary to reach a judgment on whether or not a single police authority could fund the policing services it intends to provide out of the resources it had left after the levies for NCIS and the National Crime Squad had been deducted—a point made very well by my noble friend, Lord Dixon-Smith. This means detailed central examination of the policing plans for the 43 police authorities in England and Wales. Not only is this impractical—the result would be immensely bureaucratic—it also usurps the role of police authorities and would result in direct intervention in local policing by the Home Secretary. This attacks the very foundations of the local policing structure in this country. It is potentially a move in the direction of a national police force.
The amendment to Clause 61 would have a further undesirable effect. It would tie the level of funding of the National Crime Squad for all time to the current level of funding. It would also mean that the costs of the National Crime Squad would have to be distributed to police authorities as they are now. Under this amendment the police authorities in an area served by
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an existing regional crime squad would be charged the same proportion of the National Crime Squad's costs as they currently pay for their regional crime squad. This cannot be right. For instance, what happens if crime patterns change over time or the tasks the police service ask the National Crime Squad to undertake within the remit we give them develop or alter? Under this amendment to Clause 61 the service authority would be unable to respond.
It is clearly right that the process of deciding on the levies for NCIS and the National Crime Squad should take account of local policing needs—that is absolutely fundamental. The Bill already provides for the interests of local chief officers of police and their police authorities to be taken into account. That is consistent with our tripartite system of policing. These amendments would create more bureaucracy and affect the role of police authorities in a way which we do not believe would be helpful or feasible.
The noble Lord, Lord McIntosh, asked a number of questions, first about the size of NCIS and the National Crime Squad, the size of the budget, and would it be the same as is currently spent on those services. The NCIS and the National Crime Squad budgets will be based on the current levels of expenditure on these services. That also answers the question that my noble friend Lord Dixon-Smith posed.
The provisions in the Bill are not for top slicing, as the noble Lord, knows, and I would like to write to him on the other points of detail that he raised in speaking to this amendment.
There are arguments both for and against top slicing. I will not rehearse them. We have set our face against top slicing. We believe that the levying principle avoids the direct principal control that flows from top slicing. It means that the recipients of the National Criminal Intelligence Service and the National Crime Squad services pay directly for the services they use. We believe that is a good discipline. The levy is more transparent than top slicing and will appear on council tax bills.
Lord Knights: To clarify things in my own mind, will the Minister say if I am right in thinking that the costs of the regional crime squads at the moment are met by the police forces of the regions which they serve, and that those expenses will no longer be payable because the regional crime squads will have gone? Presumably that is roughly the same amount of money as they will be called upon to pay for the central squad?
As to NCIS, I was under the impression—perhaps wrongly—that that was funded as a common police service. That means that each force is already paying a common police service contribution and, therefore, that money will equate roughly with what they will pay under the new arrangements?
Baroness Blatch: The best way for me to answer the noble Lord, Lord Knights, is to say that the money that is in the system, both for NCIS and the regional crime squads, will remain and be available through a levying process which will be heavily influenced by

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consultations and negotiations between the local authority members of the two service authorities. That money will not disappear; it will remain available. As I said, in the early stages—and as my noble friend Lord Dixon-Smith observed—the levels of payment to those bodies will be based very much on the costs that apply at present. The situation may develop differently over time.
Lord Knights: I thank the Minister for that response; but, unfortunately, I must persist in the matter. Am I right in thinking that police authorities already make a contribution to NCIS and that they do not get it for free?
Baroness Blatch: Yes.
Lord McIntosh of Haringey: Can the Minister clarify her answer of "Yes"? Does it mean that they get it for free? All the £25 million comes out of the Home Office Vote, does it not?
Baroness Blatch: I am told that it does not come off the Home Office Vote. I shall write to the noble Lord on the matter. The important fundamental point here is that the money that local police authorities will be expected to pay for both NCIS and the National Crime Squad will be made available to them from the moneys that are in the system at the moment for NCIS and the NCS.
Lord McIntosh of Haringey: I shall turn to another subject so that the Minister will be able to avoid writing to us and may, therefore, be able to give an answer now. Of course the noble Lord, Lord Dixon-Smith, is right to say that the regional crime squads are at present funded by police authorities and that will continue. However, I hope that the cost of the NCS will be greater than the combined cost of the regional crime squads. After all, the whole intention of the exercise is that the NCS will be able to fight crime more effectively and do more than the regional crime squads have been able to do. To me, that means that the new system may well cost more money. If it provides better crime busting, I do not believe that we will begrudge the money involved.
There is a combination of money at present paid by local authorities for the regional crime squads and money which is at least largely paid by the Home Office for the NCIS. We shall no doubt receive more precision in that respect in just a moment. If the Minister thinks, as she clearly does, that my amendments are technically defective, clearly I cannot pursue them to a Division. However, I was fascinated and enormously impressed by what the noble Baroness said regarding the need to leave the decisions about expenditure to the local police authorities and for the Government not to get involved. Indeed, that seems to apply not just to expenditure but also to "needs".
The Minister may have been out of local government for some time, but my understanding is that every local authority has its standard spending assessment determined by government who presume to decide what is the proper amount for each local authority to spend not only on its police services but on all its services;
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and that government grant to local authorities is based on that SSA. Therefore, all the criticisms that the Minister is making of the intervention of central government in local government expenditure as it affects the police should also apply to the use of the SSA and universal capping which is the practice in the rest of local government. I shall treasure the Minister's words. I shall probably have them picked out in needlepoint and make sure that they are used effectively when we come to the next local government spending round. The analogy will be of great help.
If the amendments are defective, we may well be driven back to saying, as some people would wish us to say, that the costs of the National Crime Squad and NCIS should be paid for by central government and not by local police authorities. I hope that is not the case because I do not wish it to be so. However, we shall have to find a way to protect the rest of police expenditure if we are to travel the route proposed in the Bill; namely, a levy. I understand the point that the Minister is making regarding the difference between a levy and top-slicing. I am sure that the Minister is right to say that the transparency of the levy has certain advantages, but there are still profound difficulties about the proposals and we shall have to return to the matter at a later stage.
Baroness Blatch: Before the noble Lord picks up his needle and thread and starts sewing my words into a piece of material for perpetuity, perhaps I may convey to him that, as I read the amendment, it seems that the Secretary of State would be expected to measure the impact of the levy on each individual authority. I believe that my noble friend Lord Dixon-Smith made that very point. Each local authority will have decided how it will spend the sum of money allocated to it from the grant for police authorities. Some will have different priorities from others. The impact of paying the levy may be different for different authorities. Once they have received their sum of money, it is not for the Secretary of State to second guess how they will deploy it operationally. That is the point I was trying to make.
The sum of money that is made available for NCIS comes in fact from the Police Vote money. That is taken into account in the share of money which is given to each local police authority. I do not know about the actual mechanics of whether the police authority takes the money and gives it back to the Government, or the other way round. However, it is part of that Vote and properly reflected in the allocation to each police authority.
Lord Dixon-Smith: I shall not detain Members of the Committee any longer because I understand that the noble Lord has already indicated that he will withdraw the amendment for further consideration. The noble Lord has revealed to me the fact that he has been out of local government rather longer than I have. However, I will say this for him: there is a difference between what actually happens and what is supposed to happen.
Lord McIntosh of Haringey: We shall, indeed, enjoy discussing the next local authority expenditure

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round. The amendments may not be adequate to the purpose, but the problem will not go away. I do not believe that it has been resolved by the Minister's response, and it certainly was not resolved by the intervention of the noble Lord, Lord Dixon-Smith. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blatch Baroness Blatch moved Amendment No. 28:
Page 8, line 36, leave out ("by") and insert ("in pursuance of").
On Question, amendment agreed to.
Clause 17, as amended, agreed to.
Schedule 3 agreed to.
Clauses 18 to 27 agreed to.
Clause 28 [Codes of practice]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 29:
Page 12, line 27, leave out subsections (2) and (3) and insert—

("(2) Where the Secretary of State proposes to issue a code of practice under subsection (I), he shall prepare and publish a draft of that code, shall consider any representations made to him about the draft and may modify the draft accordingly.

(3) The Secretary of State shall lay before both Houses of Parliament a draft of the code of practice prepared under this section.

(4) When the Secretary of State has laid the draft of the code before Parliament, he may bring the code into operation by order made by statutory instrument.

(5) No order under subsection (4) shall have effect until approved by a resolution of each House of Parliament.

(6) An order bringing the code into operation may contain such transitional provisions or savings as appear to the Secretary of State to be necessary or expedient in connection with the bringing into force of that code.

(7) The Secretary of State may from time to time revise the whole or any part of a code to which this section applies and issue that revised code; and the foregoing provisions of this section shall apply (with appropriate modifications) to such a revised code as they apply to the first issue of the code.").

The noble Lord said: In moving the above amendment, I shall, with the leave of the Committee, speak also to Amendments Nos. 30 and 31. All three amendments are designed to ensure that the general public as well as Parliament are consulted in the preparation of a code of practice. I pause for a moment because I gather from the Minister's face that I have done something wrong? Is that correct?
Baroness Blatch: I am sorry to interrupt the noble Lord, but I should like to clarify one point. I understood this grouping to include Amendments Nos. 29, 30, 31 and 65 to 67.
Lord McIntosh of Haringey: I beg the Minister's pardon; of course this grouping also applies to Part II of the Bill, and Amendments Nos. 65 to 67 are the comparable amendments relating to the National Crime Squad.
The codes of practice which are promised in this part of the Bill are welcome and we look forward to an opportunity to debate them in due course. However, it is important that the process of consultation should be clearly laid down in the Bill as is the case for other
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codes of practice for different purposes. We have been increasingly concerned with this issue in legislation over the past few years. Indeed, one of the most important innovations in legislation in recent years has been the increasing use of codes of practice and the problem of how far they can be flexible and, at the same time, how far Parliament can maintain its responsibility for dealing with the detail of legislative provisions.
Amendment No. 29 and the comparable amendment for Part II of the Bill propose that there should be a draft laid before both Houses of Parliament and that the affirmative resolution procedure should be adhered to. Amendment No. 30 proposes that other people outside Parliament should have regard to the code. In other words, there should be proper provision for observance of the code of practice. We suggest a number of enactments which will need to be covered by the code. Amendment No. 31 and the comparable amendment in Part II provide for the use of the code of practice where relevant in evidence in criminal proceedings.
What we are doing is not new; it is an extension of the authority underlying codes of practice, ensuring that they are properly drafted and properly observed and that they have the same effect in criminal proceedings as the conditions set out in detail in the Police and Criminal Evidence Act. There should be no obstacles to the introduction of consultation proceedings for the drafting. There should be no argument that it is unnecessary. NCIS is holding extremely sensitive criminal intelligence. It is an important, indeed vital part in the fight against serious and organised crime. Under those circumstances the control of the detailed operation of NCIS should not be left to the Secretary of State. Provisions subject to consultation and to conditions on observance should apply to the code of practice. It is vital that the code of practice has the authority necessary to ensure that everyone in NCIS and those who deal with NCIS in any way are assured that the code of practice is in place, has been properly drafted, and is being observed. I beg to move.
6.30 p.m.
Lord Renton: I hope that my noble friend will resist the amendments. I greatly understand the noble Lord's desire to ensure that codes of practice are properly drafted, approved and observed. But, quite frankly, if one considers it very closely indeed, Amendment No. 29, which is intended to replace subsections (2) and (3) of Clause 28, adds practically nothing. It contains a tremendous amount of verbiage but has no further effect that I can understand. The noble Lord said that there must be consultation. Consultation is not mentioned in Amendment No. 29. I am open to correction, but I understand that the provisions of Clause 28 are now common form; there are a number of precedents. The essence of the matter is that a copy of the code shall be laid before Parliament, as set out in subsection (3) and in the noble Lord's amendment. The noble Lord's suggestion that there needs to be a draft code of practice and that that constitutes something fresh is somewhat mistaken. In a sense, every code that requires the consent of Parliament is a draft. If Parliament does not approve it, it is not approved.
Subsection (4) of Amendment No. 29 provides that,
"When the Secretary of State has laid the draft of the code before Parliament, he may bring the code into operation by order".
Therefore his suggestion of a draft adds nothing to what is already in the Bill.
Amendment No. 30 puzzles me. It begins with the word "persons". It does not state which persons. But we all know that the code of practice will affect people concerned with police affairs who would be bound by the code of practice. But it states that,
"Persons, other than persons required to have regard to any code of practice issued … by virtue of regulations under any of the enactments",
—and they are specified; they are police statutes—
"shall by virtue of this subsection have regard to any such code in the performance of their functions".
A code is a code and obliges people anyway. It seems to me that the amendment adds nothing in effect.
Amendment No. 31 states that,
"In all criminal and civil proceedings a code issued under this section shall be admissible in evidence".
Codes of practice have never had to be regarded as evidence on which there can be cross-examination. A code of practice is almost part of the law. Some of us wish that we had never invented this phrase. It is just like a statutory instrument. But let us make an exception in our minds and say that it is different from other statutory instruments. The point is that it has only to be presented to a court as having had the authority of Parliament. It should not be regarded as evidence.
For those various reasons, I hope that my noble friend will resist the amendments. They add great length and confusion to the Bill.
Lord Thomas of Gresford: I strongly support Amendments Nos. 29 to 31, and 65 to 67, and in particular Amendments Nos. 31 and 67.
If there is a code, it is not enough to rely upon the assurance given by the noble Lord, Lord Renton, that the people concerned will be bound by the codes of practice. What happens when the people concerned do not bind themselves by the codes of practice but breach them? If evidence is produced in a criminal or civil court as a result of the breach of the codes, what is to be the result? Surely there has to be some sanction. The sanction under the codes introduced under the Police and Criminal Evidence Act which are concerned with the interrogation of suspects is provided in Section 78 of the Act, whereby the judge can rule evidence to be inadmissible on the grounds of unfairness.
Lord Renton: If the noble Lord will allow me to intervene, perhaps I may say with deep respect that he is confused. As regards the codes of practice and evidence of breaches of the codes of practice, we do not need to have it written in the Bill, as does Amendment No. 31, that a code issued shall be admissible. It is admissible whether or not it is produced in evidence. It
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is the breaches, as the noble Lord rightly states, which are the subject of evidence; but that is a different matter. Amendment No. 31 does not refer to the breaches.
Lord Thomas of Gresford: I am grateful to the noble Lord for his help and assistance. I do not contest that a code is admissible, or that a court can have regard to the contents of a code. However, I place the greatest emphasis on the words,
"if any provision of such a code appears to the court or tribunal conducting the proceedings to be relevant to any question arising in the proceedings it shall be taken into account in determining that question".
Surely the question to which this amendment refers is the question of the admissibility of evidence that has been obtained in breach of these codes. Of course the code in relation to Clause 28 may perhaps be less relevant, since it deals with the NCIS, than the code in relation to the National Crime Squad, because the National Crime Squad is concerned and its principal function is stated to be:
"the prevention and detection of crime relevant to more than one police area in England and Wales".
One can readily envisage, certainly so far as Clause 67 is concerned, that there could well be breaches of the code that is promulgated and that those are matters which could be of very considerable concern to a court. An hour or so ago the Minister spoke against the concept of having a commissioner to oversee the implementation, the fairness and accuracy of the work of the NCIS. He or she having gone, the phrase that comes to my mind to be adapted is "Quis custodiet codices ipsos?" Somebody has got to ensure that these codes are maintained and obeyed.
Baroness Blatch: Amendments Nos. 29, 30 and 31 to Clause 28 and Amendments Nos. 65, 66 and 67 to Clause 72 all relate to the provisions in the Bill which enable the Secretary of State to issue codes of practice about the way in which the service authorities discharge their function. Clause 28 relates to the NCIS service authority while Clause 72 deals with the National Crime Squad, as the noble Lord has already pointed out. I emphasise that it is the service authorities to whom any such codes of practice would apply, not the services themselves. That is a crucial point to bear in mind when considering these amendments.
The amendments seek to achieve three main purposes. First, they require any codes of practice to be subject to formal consultation requirements and the affirmative resolution procedure before they can come into effect. Secondly, they seek to require that persons performing functions under Clauses 89 and 91 of the Bill, which deal with the authorisation of intrusive surveillance, should have regard to these codes of practice. Finally, they provide that the provisions of these codes of practice are admissible in evidence in civil and criminal proceedings. Clauses 28 and 72 of the Bill are identical to Section 39 of the Police Act 1996, which enables the Secretary of State to issue codes of practice about the way in which police authorities discharge their functions. The purpose of the power is to allow the Secretary of State to issue binding guidance

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to service authorities about administrative procedures and about the way they discharge their duties. The only code of practice—
Lord Thomas of Gresford: Would the noble Baroness agree that there is a marked distinction between ensuring that administrative matters are carried out by police authorities under codes of practice and a situation that is envisaged in this Bill, where we are dealing with the collection of evidence one way or the other, whether through the NCIS or the crime squad provisions?
Baroness Blatch: I am just coming to the distinction, because the distinction is a very important one and I hope that the noble Lord, Lord Thomas, will see the point. The only code of practice issued to police authorities was published in 1994 and covered financial management by police authorities. Where a code was issued to a service authority, it would be subject to precisely the same consultation and precisely the same parliamentary procedures as a code issued to police authorities.
As I say, Clauses 28 and 72 of the Bill are identical to Section 39 of the Police Act. The distinction is between that and the moving on to the codes of practice which will cover the intrusive surveillance part of the Bill. I will come to that in a moment. All of that is perfectly reasonable, given that the codes will be concerned with matters of detail about the discharge of functions which have been subject to thorough parliamentary scrutiny. We can see no possible justification for dealing with codes of practice relating to the service authorities any differently from those of police authorities. The Select Committee on Delegated Powers and Deregulation of this House is also satisfied that there is an appropriate degree of parliamentary control over these powers. Although we have no present plans to issue codes of practice under these provisions of the Bill, we cannot in these circumstances accept that these amendments are necessary.
Turning to the second element of the amendments, this seems to be based on a misunderstanding of the nature of the codes of practice envisaged. Any codes will be concerned with how the service authorities discharge their functions. The service authorities and police authorities generally have no role whatsoever in the authorisation of intrusive surveillance—this is the distinction I make—to which Clauses 89 and 91 relate. That will be a matter, under the Bill as presently drafted, for chief constables and will be one for which a specific code of practice will be issued. It would be totally inappropriate and indeed unnecessary for chief constables performing those functions to have regard not only to their own specific code of practice but, as these amendments require, to codes of practice issued under these very different provisions in the Bill.
Finally, as I have already mentioned, the codes of practice will be concerned with matters of detail about how the service authorities discharge their functions. As such, they will not be relevant as evidence in criminal or civil proceedings, which was the point made by my
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noble friend Lord Renton. There is no provision for codes of practice relating to police authorities to be admissible in evidence in this way, and there is no need for such a provision in relation to service authorities. However, there is a provision in relation to intrusive surveillance and the way in which that code of practice will work. That code of practice and the way in which it is adhered to by people involved in intrusive surveillance activities will, I understand, be admissible in evidence.
We believe that the Bill makes perfectly adequate provision based on the arrangements for police authorities for these codes of practice to be prepared and to be laid before Parliament. These amendments are unnecessary and in some respects inappropriate, and therefore we cannot support them.
6.45 p.m.
Lord McIntosh of Haringey: I did not actually expect the Government to support the amendments and I do not think it was only the pleading of the noble Lord, Lord Renton, that persuaded them not to. I have to say to the noble Lord that, unusually for him, his observations were almost entirely misconceived. Codes of practice are treated in this way in particular in the Police and Criminal Evidence Act and codes of practice, which form such a large part of the Police and Criminal Evidence Act, and therefore of our criminal procedures, are subject to exactly these constraints on consultation, on parliamentary approval, on observance and on use in evidence.
I suspect that I am wrong, not so much in the wording of these amendments but in where they have been placed. I accept that the Minister is right in that to some extent the wording I have used is more appropriate to police activities than to the activities of the service authorities. I also think that my amendments are wrong in their references to Clauses 89 and 91. I think they should be dealt with separately when we come to Part III of the Bill. Indeed, as the noble Baroness will know, we have a number of amendments down about the code of practice which she has so kindly supplied to us in draft.
These are clearly not amendments which I can pursue, but the point which I tried to make at the beginning and which was powerfully backed up by the noble Lord, Lord Thomas of Gresford, is still true. In other words, if you have codes of practice—and they are referred to in Clause 28—then they have got to be properly enforced. The provisions of subsections (2) and (3) of Clause 28 and the comparable provisions of Part II of the Bill simply do not provide adequate enforcement procedures; nor do they provide for adequate consultation. To that extent, the analogy of the codes of practice in the Police and Criminal Evidence Act is very relevant, and this is a matter which I shall have to come back to at a later stage.
I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 30 and 31 not moved.]
Clause 28 agreed to.
Clauses 29 to 35 agreed to.
Clause 36 [Common services]:
[Amendments Nos. 32 to 35 not moved.]
Clause 36 agreed to.
Clause 37 [Discipline regulations]:
Baroness Hilton of Eggardon Baroness Hilton of Eggardon moved Amendment No. 36:
Page 15, line 38, leave out ("members") and insert ("employees").
The noble Baroness said: In moving Amendment No. 36 I shall also speak to Amendments Nos. 52, 54, 68 and 143. These amendments relate to the procedures for the disciplining of officers attached to the central organisations.
I have considerable experience in working in mixed squads of police officers and civilian staff and understand that it might seem attractive to have a common procedure for disciplining all members of NCIS and the National Crime Squad. However, I think that such a common procedure will cause greater confusion not only to police officers themselves, who find that they are not subject to the normal discipline code they have been used to when members of their own forces, but also, and perhaps more importantly, it will cause confusion to members of the public if they find that the officers attached to the central organisations are not subject to similar discipline codes as apply within their own forces. This is particularly the case in relation to the National Crime Squad whose officers will presumably be engaged on joint operational exercises with officers from local forces in various parts of the country.
This point will relate to further amendments with regard to complaints about the police. If the public find that some of the officers concerned are subject to one set of disciplinary regulations because they belong to the ordinary police forces throughout the country while other police officers, because they are attached to either NCIS or the National Crime Squad, are subject to a different discipline code, it could be extremely disruptive to public confidence in the behaviour of these officers.
I ask the Minister to consider whether it is appropriate that these organisations should have a separate form of discipline to that which the police service throughout the rest of the country enjoys. I beg to move.
Baroness Blatch: Seconded police officers will form the majority of the police officers working in both services. The Police Federation wants those officers to remain subject to the discipline regulations which apply to all forces and do not want there to be any possibility of a separate set of regulations being applied.
I understand those concerns. The existing discipline arrangements for officers on temporary service under Section 97 of the Police Act 1996 have worked well. It is likely that in many respects they will continue to operate as they do now. It is our intention that the discipline arrangements for police officers in the two services should be entirely consistent with those for police officers generally. In practice, they will have to
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be. Officers coming to work in both services will be volunteers and it would not be possible to attract them if they felt that they were being disadvantaged in any way.
It is also the Government's intention that the discipline arrangements will apply as far as is reasonable to all staff, including the civilians. At NCIS, for example, there may be police, Customs and Immigration officers all working on the same operation. The Government believe that staff working in the services should be subject to a consistent complaints and discipline regime as far as possible. It would be difficult to justify treating the various groups of staff in different ways. It could lead to confusion for members of the public as well. It is vital that, if members of the public wish to complain, there are clear and consistent procedures for doing so. Alternatively, a person making a complaint might have to make several complaints simultaneously: one through a police procedure, one through a procedure governing Customs officers and another through a system for civilian staff. This would be confusing for the complainant and could be unjust for staff working side by side in the same organisation.
To turn now to the amendments to Clauses 37 and 80, there will be some police members permanently appointed to the services to whom general discipline regulations cannot apply. They are defined in the Bill as members, not employees, and so these amendments would mean that there could not be discipline regulations which applied to them. It is also important that the position of the director general and his senior officers in relation to disciplinary matters is clear. This may mean that they should in some matters have the same disciplinary powers as their senior colleagues in police forces and that those powers should be consistent in relation to all members of their services. This would require regulations to be made which were appropriate to the needs of the two services and which could be applied to all staff.
I am happy to repeat the assurance which I gave at Second Reading that there will be full consultation with the police staff associations and others before any regulations are made on these matters. But regulations may be needed and the Bill as presently drafted correctly refers to such regulations applying to the conduct of members, not just employees, of the National Criminal Intelligence Service and the National Crime Squad. For that reason, we are unable to accept these amendments to Clauses 37 and 80.
The amendments to Clause 54 go even further than those to Clauses 37 and 80. They seek to provide that police members of the National Crime Squad will continue to be subject to all the terms and conditions of service set out in police regulations rather than terms and conditions determined by the service authority for the National Crime Squad.
At present, police officers in the regional crime squads are seconded from their forces and so remain subject to police regulations. Under the provisions of the Bill such officers will, as is already the case for the National Criminal Intelligence Service, be seconded on a period of temporary service, to which Section 97 of the Police Act 1996 applies. Police regulations do not

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apply to such officers, but virtually identical terms and conditions are applied administratively. This has worked well because, as will be the case with the National Crime Squad, officers working in such central services are volunteers and would not join unless the terms and conditions very largely reflected those in forces.
As with the current arrangements for central service, we do not believe that police regulations should apply directly to the National Criminal Intelligence Service or the National Crime Squad. They are national bodies and may wish to develop terms and conditions which better meet their specific needs. That is why the Bill provides for the terms and conditions to be determined by the service authorities. But we recognise the concerns of staff that there should be consultation with their representative bodies before such wider terms and conditions are determined. Paragraphs 73 and 74 of Schedule 9 to the Bill specifically provide for consultation with the Police Negotiating Board before the terms and conditions for police members are decided. We believe that this will provide adequate and appropriate machinery for consultation on these important matters.
We do not believe that it is right to leave police members of the National Crime Squad directly subject to police regulations. These matters should be dealt with in the same way as for police members of the National Criminal Intelligence Service and in line with the arrangements which already work perfectly well for officers on central service. There will in future be specific provision for consultation with the Police Negotiating Board, which we believe adequately protects the interests of police officers working in both services. Unless the terms and conditions are as good as those in forces, the National Crime Squad will simply not attract the volunteers which it will need. In those circumstances, we believe that the Bill adopts the right approach and therefore we cannot accept these amendments.
Baroness Hilton of Eggardon: I am grateful for that response from the Minister, which I shall study in due course. It is nothing to do with the amendment, but I am surprised that she thinks people will not volunteer for these exciting new squads unless the conditions are right. People often volunteer to do jobs because they think they will be interesting and it is possible that they will be willing to put up with conditions that could be thought inappropriate. Nevertheless, I accept the tone of what the Minister said. I will study her answer carefully.
I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 37 agreed to.
7 p.m.
Baroness Blatch Baroness Blatch moved Amendment No. 37:
After Clause 37, insert the following new clause—
APPEALS: PART 1
(".—(i) A police member of NCIS to whom section 9(2)(a) applies and who is dismissed or required to resign by a decision taken under or by virtue of regulations made under section 37 may
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appeal to an appeals tribunal against the decision except where he has a right of appeal to some other person; and in that case he may appeal to an appeals tribunal from any decision of that other person as a result of which he is dismissed or required to resign.
(2) The Secretary of State shall, by order, make provision in relation to appeals tribunals and appeals under subsection (1) corresponding (with or without modification) to that which is or may be made in relation to police appeals tribunals and appeals under section 85(1) of the Police Act 1996 by, or by virtue of, section 85(2) to (4) of and Schedule 6 to that Act.
(3) A statutory instrument containing an order under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.").
The noble Baroness said: In moving this amendment I shall speak also to Amendments Nos. 69 and 142. Amendments Nos. 37, 69 and 142 to Clauses 37 and 80 and Schedule 9 respectively are necessary to ensure that senior police officers who are appointed as permanent police members of the National Criminal Intelligence Service and the National Crime Squad will have access to the same appeals tribunal machinery as their senior colleagues in police forces.
Section 85 and Schedule 6 to the Police Act 1996 make provision for senior police officers to have a right of appeal to a police appeals tribunal before they are dismissed or required to resign from police service. That machinery will not be available to senior police officers permanently appointed to the two services unless this Bill makes specific provision for it to do so. These amendments make such provision and so give senior permanent police members of the two services the same protection as their senior colleagues in police forces. This is not something which could be done by means of the regulation-making powers which the Bill already provides. The provisions for senior officers in police forces are on the face of the Police Act 1996 and so should be on the face of this Bill.
Amendment No. 38 provides, in relation to the National Criminal Intelligence Service, for the Secretary of State to make regulations governing the conduct of appeals tribunals which will correspond to those made under the equivalent provisions of the Police Act 1996. This is necessary because the National Criminal Intelligence Service is a United Kingdom body and so the regulations cannot be applied directly as they are in Amendment No. 69 for the National Crime Squad. But there will be no difference in practice between the arrangements for the two services. As with the appeals tribunals under the Police Act 1996, Amendment No. 142 to Schedule 9 ensures that the arrangements established by this Bill are covered by the Tribunals and Inquiries Act 1992 and will be subject to the oversight of the Council of Tribunals.
Finally, I wish to emphasise that specific provision of this kind does not need to be made for the vast majority of police officers working in the National Criminal Intelligence Service and the National Crime Squad. They will be on temporary service under Section 97 of the Police Act 1996. If there were any prospect of officers seconded in this way being dismissed, required to resign or reduced in rank, they would be returned to their home force. They would then automatically have access to the usual police appeals machinery. Their position is fully protected without the need for specific

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provision to be made in the Bill. I hope that the Committee will accept these amendments. I beg to move.
Lord Harris of Greenwich: Perhaps I may ask the noble Baroness a question on this matter, which she may prefer to deal with by correspondence. What are the arrangements now for someone who is the equivalent of a chief officer—that is, after all, the rank of the officer who will be commanding the National Criminal Intelligence Service—in the unlikely event of any disciplinary proceedings being initiated? I should be grateful if she would let me know what the procedures are now in relation to officers of that rank.
Baroness Blatch: I can give the noble Lord an assurance that I shall contact him on that matter.
On Question, amendment agreed to.
Clause 38 [Application of police complaints regime to NCIS]:
Baroness Hilton of Eggardon Baroness Hilton of Eggardon moved Amendment No. 38:
Page 16, line 7, leave out from ("shall") to ("make") in line 8 and insert ("to the extent that they relate to police members, so far as is practicable").
The noble Baroness said: This amendment covers very much the same ground as before in relation to discipline codes. The Bill appears, on the face of it, to make provision for a totally different police complaints procedure to be set up. We seek assurance that in relation to Amendments Nos. 38 and 70 it is not intended to have a totally different regime for complaints about officers in these squads.
Let me again make the point in relation to the National Crime Squad that officers who are engaged in practical operations on the street with officers from local forces should not expect to find that there is a different system of complaints in relation to them. Even more important perhaps is that members of the public should have a single avenue for complaining about the actions of officers who are acting jointly in operational situations and should not be required to make complaints through two separate channels or two separate authorities.
I therefore seek a similar assurance as on the discipline code that the police complaints procedure set-up particularly for the National Crime Squad will be the same as that for local police forces, so that neither the police nor members of the public will be confused or have difficulty in dealing with the procedures. I beg to move.
Baroness Blatch: I hope that I am able to reassure the noble Baroness. As with the discipline arrangements we have just debated, the Government understand the concerns which have prompted these amendments. We do not intend to make any regulations which would disadvantage police officers in any way. Indeed, we expect the complaints procedures to be modelled very closely on existing police procedures. That is clear from the Bill. But we also believe that it is important that we should, as far as possible, ensure that all staff working
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in the two services should be subject to consistent complaints systems. That will be particularly important in the case of the National Criminal Intelligence Service, where members will be drawn from the police, Customs, immigration and security services and where there will be many civilian staff as well. And, as I said in debate on Clauses 37 and 80, a member of the public may, as the noble Baroness said, find himself in the confusing position of lodging complaints under very different systems if his complaint involved more than one person from different parent organisations. We want to do what we can to smooth that process for complainants.
The provisions of the Bill will enable the Secretary of State to make regulations for such procedures so far as he thinks desirable. As the noble Baroness knows, this is a complex matter on which a great deal of further work will be needed before any regulations can be made. Again, I assure the Committee that there will be full consultation with the staff associations and others before final decisions are made. Careful consideration will need to be given to the circumstances of all staff. But we do not think that it is right to try on the face of the Bill to put police members in some special or different position. There will be other staff who are equally vulnerable to malicious complaints and whose position also needs to be considered.
I take the point made by the noble Baroness. We need to be as fair to the complainant as we are to protecting the rights of those who work in the authorities.
Baroness Hilton of Eggardon: I am grateful to the Minister for that assurance. I hope that when the complaints procedure emerges it will be very much on all fours with the complaints procedure in relation to other police officers from the home forces. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 38 agreed to.
Clauses 39 and 40 agreed to.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 39:
After Clause 40, insert the following new clause—
LIAISON BY DATA PROTECTION REGISTRAR WITH EUROPOL
(". The Secretary of State shall by regulations provide the designated national supervisory authority responsible for personal data protection with the necessary powers to supervise and monitor the functions of NCIS in acting as the national unit liaising with the European Police Office (known as Europol) in relation to personal data as provided by the Convention on the Establishment of a European Police Office (the Europol Convention).").
The noble Lord said: This amendment is not critical of any provisions in the Bill as drafted. It seeks to deal with a problem which arises out of the role of the data protection registrar in relation to the files of the NCIS.
Under Article 23 of the Europol Convention, every member state of the European Union has to designate a national supervisory body with the task of independently monitoring the functions of the national liaison unit in relation to the gathering and distribution of personal

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data. At the moment, the likely body, when the convention is ratified, will be the data protection registrar.
The data protection registrar has already anticipated that possibility. In her recent response about the implementation of the data protection directive of the European Union, she points out that she does not have sufficient powers under the Data Protection Act 1984 to carry out that role. What she would need in order to carry out the role would be audit powers to enable her to pursue compliance, particularly in relation to those holding sensitive data. That includes for the purpose of this Bill the National Criminal Intelligence Service.
I understand that at present there are administrative or executive actions—in other words, non-statutory actions—being developed, so that the Europol Convention can replace without legislation the powers which are missing and which she lacks in this area. Her powers at the moment are rather passive. She receives and investigates complaints and she has the responsibility of promoting observance of the data protection principles which her office has produced and of disseminating information to the general public. The audit powers which would be required by ratification of the Europol Convention would require her to have those additional powers to which I referred. It would seem desirable, at a time when we are considering the constitution and the responsibilities of NCIS, to provide, as in other European member states, for those powers to be on a statutory basis. I beg to move.
Baroness Blatch: I hope I can be helpful to the noble Lord on this point.
There is no need to provide the data protection registrar, as the intended national supervisory body under the Europol Convention, with additional statutory powers to perform that role. The Europol Convention provides that the national supervisory body shall have access at the national unit (in the UK, the National Criminal Intelligence Service) for the purposes of monitoring data sent to, and received from, Europol. We believe that that role can be fully performed through NCIS providing access voluntarily to the registrar, which it is willing to do. A written agreement is currently being pursued between the registrar's office and NCIS to set out precisely how that access would be exercised in practice. Full consideration should be given to how that approach fares in practice before considering alternatives.
There is nothing inherent in the proposed change of status of NCIS that would alter either the willingness of NCIS to grant access voluntarily or the registrar's ability to monitor this data. But the matter is in hand between the registrar and NCIS.
Lord McIntosh of Haringey: I understood that and that is what I indicated in moving the amendment. I understand that what I call "administrative arrangements" and the Minister referred to as a "voluntary" agreement are in hand. But what happens if they go wrong?
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It seems to me that the opportunity arises, when we are considering the statutory basis of NCIS, to put the matter on a proper footing. I do not doubt the good will of both NCIS and the data protection registrar in seeking to provide the access which will be necessary. The Minister recognises that access will be necessary but for some reason is insisting on relying on voluntary arrangements rather than the firmer basis that would be provided by the new clause.
I understand what the Minister says, but I am puzzled by her resistance to this modest change. I shall need to think about the matter and perhaps talk to her about it before the next stage. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 41 [Liability for wrongful acts of constables etc.]:
Baroness Blatch Baroness Blatch moved Amendment No. 40:
Page 18, line 23, leave out ("(4)(b)") and insert ("(4)(a)").
On Question, amendment agreed to.
Clause 41, as amended, agreed to.
Clause 42 agreed to.
Clause 43 [Orders governing NCIS Service Authority]:
Baroness Blatch Baroness Blatch moved Amendment No. 41:
Page 18, line 45, leave out ("by") and insert ("in pursuance of").
On Question, amendment agreed to.
Clause 43, as amended, agreed to.
Schedule 4 agreed to.
Clauses 44 to 49 agreed to.
Clause 50 [Annual reports]:
[Amendment No. 42 not moved.]
Clause 50 agreed to.
Clause 51 [Appointment of Director General]:
Baroness Blatch Baroness Blatch moved Amendment No. 43
Page 22, line 22, after ("in") insert ("paragraph 14 of").
On Question, amendment agreed to.
[Amendment No. 44 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 45:
Page 22, line 30, at end insert—
("( ) The Director General shall hold the rank of chief constable.").
On Question, amendment agreed to.
Clause 51, as amended, agreed to.
Clause 52 agreed to.
7.15 p.m.
Clause 53 [Deputy Director General]:
Baroness Blatch Baroness Blatch moved Amendment No. 46:
Page 23, line 6, leave out (" 54(2)(b)") and insert (" 54(2)(a)").
On Question, amendment agreed to.
Clause 53, as amended, agreed to.
Clause 54 [Other members of the National Crime Squad]:
Baroness Blatch Baroness Blatch moved Amendments Nos. 47, 48, and 49:
Page 23, line 27, at beginning insert ("he is appointed to the rank of assistant chief constable in the National Crime Squad and he met the requirements of subsection (2A) immediately prior to his being appointed, or
(b)")
Page 23, line 29, leave out from ("applies") to end of line 32 and insert—

("(2A) A person meets the requirements of this subsection if

(a) he holds the rank of assistant chief constable or a higher rank in a police force in Great Britain or in the Royal Ulster Constabulary,

(b) he holds the rank of commander or a higher rank in the metropolitan police force or in the City of London police force, or

(c) he is, in accordance with regulations under section 50 of the Police Act 1996, section 26 of the Police (Scotland) Act 1967 or section 25 of the Police Act (Northern Ireland) 1970, a constable eligible for appointment to the rank of assistant chief constable or commander in any of the police forces, or in the Constabulary, mentioned in paragraph (a) or (b).").

Page 23, line 33, leave out ("to (7)") and insert (6) and (7)").
The noble Baroness said: I have already spoken to these amendments. With the leave of the Committee I shall move them en bloc. I beg to move.
On Question, amendments agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 50:
Page 23, line 33, leave out ("person") and insert ("a police member").
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 51:
Page 23, line 34, leave out ("(2)(b)") and insert ("(2)(a)").
On Question, amendment agreed to.
[Amendment No. 52 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 53:
Page 23, line 36, leave out from ("(c)") to ("shall") in line 37.
On Question, amendment agreed to.
[Amendment No. 54 not moved.]
Baroness Blatch Baroness Blatch moved Amendments Nos. 55 to 58:
Page 23, line 43, leave out from beginning to ("at") in line 45 and insert ("(6) A police member to whom subsection (2)(b) applies shall cease to be a member of the National Crime Squad").
Page 24, line 5, leave out from ("Squad") to end of line 6.
Page 24, line 8, leave out ("within subsection (2)(b)") and insert ("to whom subsection (2)(a) applies").
Page 24, line 16, leave out subsection (10).
The noble Baroness said: These amendments have already been spoken to. With the leave of the Committee I shall move them en bloc. I beg to move.
On Question, amendments agreed to.
Clause 54, as amended, agreed to.
Clause 55 agreed to.
Clause 56 [Reports by Director General to the Authority]:
[Amendment No. 59 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 60:
Page 24, line 28. at end insert ("during that year").
On Question, amendment agreed to.
Clause 56, as amended, agreed to.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 61:
After Clause 56, insert the following new clause—
ACCOUNTABILITY OF NCS SERVICE AUTHORITY

(".—(1) Where a police authority in England or Wales notifies the NCS Service Authority of a request that it investigate a matter of concern to which this section applies, the Director General of the NCS shall investigate and report to the NCS Service Authority as soon as reasonably practicable.

(2) A matter of concern to which this section applies is an exceptional matter of concern arising from an incident or series of incidents which have occurred within the police authority's area and relating to the conduct, efficiency or effectiveness of the NCS.

(3) The NCS Service Authority shall, after considering a report made by the Director General of the NCS under this section, notify the police authority concerned as soon as practicable and shall make available to that authority a statement as to its conclusions and any action which it proposes to take.").

The noble Lord said: Amendment No. 61 takes the form of a new clause to be inserted after Clause 56. It would provide a mechanism for a police authority to raise issues of serious concern with the director general through the service authority for the National Crime Squad.
This is an analogy with the provision under Section 22 of the consolidated Police Act 1996. That Act provides, and earlier legislation provided before it, that a chief constable must, when required to do so by the police authority, submit a report to the authority on such matters as may be specified in the requirements which are related to the policing of the area.
There are comparable powers to require reports in this legislation and we have passed through them without debate and without difficulty. In fact, so many reports are flying between the service authorities, the Secretary of State and the criminal intelligence service and the National Crime Squad that a few more forests will need to be created to provide the paper for them. The analogy for the provision under Section 22 of the 1996 Act does not exist in the present Bill. We are suggesting that it should.
The power under Section 22 is not used very often but it is a useful safeguard. It allows a police authority to ask for a report when there is some disquiet about the operation of the force. There is a get-out provision which allows the chief constable to refer the requirement to the Secretary of State if he believes that the disclosure of the information is not in the public interest or is not needed for the discharge of the police authority's function. In those circumstances, the Secretary of State can put aside the requirement which the police authority has made. There are analogies in this Bill to that get-out provision.
I am not suggesting that there will be problems, but with a new national crime squad investigating crime in many areas, there is bound to be the possibility of conflict of some kind between a local police force and the National Crime Squad. They are intended to work hand in glove. I accept that the intention of the legislation is in that direction and I accept that a great deal of effort has been put in to ensuring that there is no conflict between the National Crime Squad and the local police force. However, if anything goes wrong with the liaison, not through any lack of good will but through simple human error, it is possible that a serious crime could be committed in the area of a local force, there could be loss of life and it could be that the local police force and the local police authority are called to account by the people living in the area. In this amendment we provide that there should be the possibility of a police authority raising the issue with the director general of the National Crime Squad through the service authority. It would give some assurance to the local police authority that matters were being properly investigated and that a full explanation of the circumstances would be given.
Clause 76 of the Bill allows the Secretary of State to require reports of this kind. The Secretary of State, being accountable to Parliament, is able to answer questions in Parliament about the operation of the national crime squad and has to be sure that he can get the information. What we are proposing here is a similar power for a local authority which is also responsible to people in a local area. We do not want this to be widely used. If it were to be widely used it would be the result of a more general failure in liaison between the National Crime Squad and the local police force. I hope that would not happen; and if it did happen, it probably would be a matter of national concern. A comparable power to that provided in Clause 76 is appropriate. This seems to be the appropriate place to insert it. I beg to move.
Baroness Blatch: The Government recognise that police authorities in England and Wales will have a legitimate interest in the way the National Crime Squad performs the role set out for it in the Bill. That is why the Bill provides for nine police authority members, plus a representative of the police authority for the Metropolitan Police, to sit as members of the National Crime Squad service authority. It is also why the Bill provides no fewer than five separate requirements for police authorities in England and Wales to be consulted about important matters relating to the service authority and the National Crime Squad itself.
Clause 46 requires the Secretary of State to consult persons whom he considers to represent the interests of police authorities before making an order to vary the size of the National Crime Squad service authority. Clause 48 requires the service authority to consult with representatives of police authorities before determining its objectives for the National Crime Squad. Clause 70 places the same duty on the Secretary of State before he sets objectives for the National Crime Squad. Clause 83 places a general duty on the service authority to make
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arrangements to obtain the views of police authorities. There is a similar duty on the director general of the National Crime Squad to consult chief officers of police. There is a duty in paragraph 2 of Schedule 5 for the Secretary of State to consult police authorities before deciding whether or not to approve the levies proposed by the NCS service authority. This is in addition to the provisions at paragraph 1 of that schedule which ensure that police authority members sitting on the service authority are in the majority when any decision is taken about the levies to be charged to police authorities in England and Wales.
As well as these specific requirements for the Secretary of State or the service authority itself to consult police authorities in England and Wales about matters relating to the service authority, the Bill also requires the service authority to provide all police authorities in England and Wales with a copy of its service plan and annual report. Clause 71 allows the Secretary of State to set performance targets for the National Crime Squad. These measures will assist individual police authorities in judging the extent to which the National Crime Squad is efficient and effective.
There are other measures in the Bill which ensure that the performance of the National Crime Squad is closely scrutinised. Principal among these is the role for Her Majesty's Inspectorate of Constabulary and the Secretary of State's power to require the service authority to take remedial action in the light of an adverse report.
I hope the Committee will agree with me when I say that together these measures ensure that police authorities in England and Wales are fully consulted about matters relating to the National Crime Squad and its service authority in a manner which is consistent with the existing tripartite structure of policing in this country.
But it is not for this reason alone that I must oppose the amendment. The amendment cuts across the primary role of the National Crime Squad service authority. It is its duty to ensure that the National Crime Squad is an efficient and effective service. I doubt that any police authority in England and Wales would be prepared to accept being second guessed in the way this amendment would lead to the National Crime Squad service authority being second guessed. It is also at odds with one of the basic tenets of policing in this country: the operational independence of chief constables. Under this clause, police authorities would be able to question operational decisions taken by chief constables.
The Bill already contains adequate and extensive measures to ensure police authority involvement with the National Crime Squad. In view of this and given the way the measures in this clause would interfere with the operational independence of the director general of the national crime squad and cut across the primary duty of the squad's service authority I hope that the Committee will agree that the proposed new clause should not be included in the Bill.
Lord McIntosh of Haringey: As I predicted, the Minister has given an impressive list of reports which fly backwards and forwards and consultations which

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take place, although the Committee will have observed that most of them involve the Secretary of State requiring reports. It is mostly top-down consultation rather than bottom-up consultation.
The purpose of the amendment was rather different. We sought to require the people who are accountable to local people on the ground in individual police authority areas to do something comparable to that which the Secretary of State in other circumstances quite properly is authorised to do. I emphasise again that it is not intended that the power should be used frequently. Subsection (2) of the new clause provides:
"A matter of concern to which this section applies is an exceptional matter of concern".
The word "exceptional", as the Minister will recognise, has legal significance, as we shall no doubt hear again when we come to the Crime (Sentences) Bill. I also emphasise that it is not a report being made by the director general to an individual police authority. What we are asking for is a report being made by the director general to the service authority.
The service authority shall consider that report and make such conclusions as it thinks proper and notify the police authority about those conclusions. That is what is provided for in subsection (3). So there is no question here of what the Minister calls "second guessing". We are not saying that the police authority has the right to go to the director general and say, "Provide me with a report about this". It is only the service authority which has that power in many other respects to require reports from the director general. All that happens here is that there is an additional trigger for a report which reflects the proper concerns of a police authority.
I understand the Minister's concerns, although I do not accept that what is proposed runs counter to good policing principles. I shall think again about how these provisions fit in with the many other complex provisions which are in this part of the Bill. In the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 57 [Officers and employees]:
[Amendment No. 62 not moved.]
Clause 57 agreed to.
Clauses 58 to 60 agreed to.
Clause 61 [Power to issue levies]:
[Amendment No. 63 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 64:
Page 26, line 6, leave out ("by") and insert ("in pursuance of').
On Question, amendment agreed to.
Clause 61, as amended, agreed to.
Schedule 5 agreed to.
Clauses 62 to 71 agreed to.
Clause 72 [Codes of practice]:
[Amendments Nos. 65 to 67 not moved.]
Clause 72 agreed to.
Clauses 73 to 79 agreed to.
Clause 80 [Discipline regulations]:
[Amendment No. 68 not moved.]
Clause 80 agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 69:
After Clause 80, insert the following new clause—
APPEALS: PART II

(".—(1) A police member of the National Crime Squad to whom section 54(2)(a) applies and who is dismissed or required to resign by a decision taken under or by virtue of regulations made under section 80 may appeal to an appeals tribunal against the decision except where he has a right of appeal to some other person; and in that case he may appeal to an appeals tribunal from any decision of that other person as a result of which he is dismissed or required to resign.

(2) Section 85(2) to (5) of, and Schedule 6 to, the Police Act 1996 (police appeals tribunals) shall apply, subject to such modifications as the Secretary of State may by order prescribe, in relation to an appeals tribunal and an appeal under subsection (1) above as they apply in relation to a police appeals tribunal and an appeal under section 85(1) of that Act.

(3) A statutory instrument containing an order under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.").

On Question, amendment agreed to.
Clause 81 [Application of police complaints regime to National Crime Squad]:
[Amendment No. 70 not moved.]
Clause 81 agreed to.
Clauses 82 to 86 agreed to.
Schedule 6 agreed to.
Clauses 87 and 88 agreed to.
The Earl of Courtown: I beg to move that the House do now resume. In moving this Motion, I suggest that the Committee stage begins again not before 8.35 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Health and Safety (Repeals and Revocations) Regulations 1996
7.34 p.m.
The Minister of State, Department of the Environment (Earl Ferrers)The Minister of State, Department of the Environment (Earl Ferrers) rose to move, That the draft regulations laid before the House on 23rd October be approved [1st Report from the Joint Committee].
The noble Earl said: My Lords, these regulations are being made under Section 37 of the Deregulation and Contracting Out Act 1994, which allows the removal without replacement of certain health and safety statutory provisions which have been shown to be outdated and to have no practical effect. They will remove 16 pieces of redundant legislation which relate specifically to the textile and agricultural industries.
First, the textiles provisions: some of these have reached their 90th birthday and are long overdue for retirement, if not burial. They cover three subjects: artificial humidification; kiers; and cotton shuttles. It is

195
an historical fact of life that, in the early part of the century, textile workers were exposed to some pretty unpleasant—and sometimes dangerous—working conditions which were caused by a combination of high temperatures and humidity.
Steam injection systems were used to humidify workrooms, and were controlled by hand. Steam is no longer used as a means of humidification and modern monitoring and control systems are automated. The related legislation is, therefore, simply redundant.
Then we have the provisions relating to kiers. Some of your Lordships may think that "kier" is a delectable drink which should not be made redundant. But in this case a kier is a big vat, possibly one which might be suitable for boiling Members of the Opposition, but which is more usually used for boiling textiles and which allows water to percolate through the textiles. The regulations apply to kiers in print works, bleaching and dyeing works, or works where cotton or cotton waste is bleached. There are few, if any, kiers still in use. Even if some still survive, the specific requirements, which are set out in the Kiers Regulations, are now superseded by up-to-date health and safety legislation.
Then we have the regulations on cotton shuttles. They prohibit the use of shuttles which are threaded by mouth suction in cotton cloth factories—not a very delicate method of threading shuttles. The regulations were necessary because of the risk of contracting a serious disease like tuberculosis. Fortunately, technology has advanced a little by now, and shuttles are not threaded by mouth. This means that these regulations are obsolete.
The agricultural provisions cover four subjects: field machinery (which includes stationary threshing machines and balers); ladders; workplaces; and poisonous substances. From 1st January 1997, the regulations on field machinery and on stationary threshing machines and balers will be duplicated by the Provision and Use of Work Equipment Regulations 1992 and the Supply of Machinery (Safety) Regulations 1992. They are, therefore, simply not needed.
The regulations on ladders place a specific obligation on agricultural employers to ensure that their ladders are properly constructed and that they are safe to be used. The construction and use of ladders in all sectors of business is now covered by up-to-date legislation and modern manufacturing standards. So these regulations are redundant.
In a similar way, the requirements in the regulations which cover the safety of agricultural workplaces are now superseded by the regulations which cover all places of work. Those regulations are the Workplace (Health, Safety and Welfare) Regulations 1992.
Most of the Agriculture (Poisonous Substances) Act 1952 has already been repealed. Only those sections remain which refer to the taking of samples of those substances to which the Act still applies. These powers in relation to sampling procedures are no longer used by health and safety inspectors because they have ether powers to take samples under the Health and Safety at Work etc. Act 1974.
The Health and Safety Commission has consulted widely with industry on all these proposals. The responses have shown that there was no objection either from those organisations which represent employers or from those which represent employees to the repeal and revocation of these Acts and regulations. I hope that your Lordships will be of the same opinion.
The Health and Safety Commission has therefore recommended that the legislation which is referred to in the draft regulations can be removed without replacement and without endangering health and safety standards.
The removal will have the advantage of simplifying the present legislation, and of making it easier to understand. And in the words of 1066 and All That, that must be a Good Thing. I commend the regulations to your Lordships. I beg to move.
Moved, That the draft regulations laid before the House on 23rd October be approved [1st Report from the Joint Committee].—(Earl Ferrers.)
Lord Dubs: My Lords, I thank the Minister for his clear explanation of what is at stake in these regulations. It is right to get rid of obsolete and redundant legislation, and obviously we welcome these regulations. However, I wonder how many more pieces of redundant legislation remain on the statute book and whether these particular regulations are the tip of the iceberg. Are there many more to come or are these just about it for the time being?
I was puzzled by the title of the regulations, which refers to repeals and revocations. I had to discover the difference between repeals and revocations. I am sure that all noble Lords are aware of it but I was not. The noble Lord, Lord Mackay of Ardbrecknish, indicates that his understanding is not clear. Although he should not tempt me, for the record I understand that repeals get rid of legislation and revocations get rid of regulations. I learnt something in the course of doing my homework for the purpose of this short debate.
I note that there has been a cut in the number of inspectors who carry out inspections on behalf of the Health and Safety Executive. There has also been a reduction in the total number of inspections. I hope that that is not because all available staff are so busy scouring the statute book for obsolete and redundant measures that they do not have time to get on with that work. I should like an assurance that that is not so. It must take a good deal of time to go through the statute book to discover what is no longer needed.
I have looked through these matters in detail. I raise only one specific point, other than the noble Earl's reference to boiling the Opposition in oil. Of course, that would be an interesting point to debate following June of next year. We should not allow ourselves to be provoked by the Minister, who usually rises to make such points only if we start something. Tonight, he got his retaliation in first, as it were. My question relates to ladders. I raise this matter possibly because ladders are the only items that I understand, or the only items in the regulations with which I have had something to do in a personal sense. No doubt many of your Lordships have similar experience.

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Having listened carefully to what the Minister said, I understand that there is an obligation on agricultural employers to ensure that ladders which are provided for use by their employees are properly constructed and used in a safe manner. I understand that that matter is covered by across-the-board legislation and manufacturing standards. But what about the thousands of old ladders that are still in use? Is there a need to protect agricultural workers who may be asked to use them? I understand that the way in which ladders are used—the angle at which they are leant against walls and so forth—is covered by the new measures, but do agricultural workers who may be using old ladders have proper protection?
Having said that, I welcome the fact that we are getting rid of obsolete measures, particularly in view of the assurance that there has been adequate consultation and all those concerned are in favour of these repeals and revocations.
Earl Ferrers: My Lords, I am grateful to the noble Lord, Lord Dubs, for welcoming this measure and the intention of the Government to introduce measures to remove obsolete legislation. He asked whether this was the tip of the iceberg. Of course, we are looking at all legislation right across the board. It is a considerable programme of work and we are about half way through it. I cannot guarantee that there will be no further regulations of this nature coming before the House. Indeed, I would have hoped that he would be glad if more such regulations came along because it would mean that we were doing what we were supposed to be doing and making life easier for everyone.
The noble Lord referred to the decline in the number of inspections. There is a decline in the number of planned inspections due to the changing nature of the enforcement strategy of the Health and Safety Executive. It is not because its staff are sitting at home crawling over the papers to see whether there are any bits and pieces that can be removed from the legislation, although that activity also takes place. Enforcement action is targeted at activities which present the greatest risk. There are fewer planned inspections this year but they are better targeted and are conducted in greater depth. There are about 364 inspections per staff year. The noble Lord was worried about ladders. Existing ladders, even if they are very old, are covered by the new legislation. I do not believe that he needs to be concerned about that.
If the noble Lord believes that I baited him I apologise. I could not resist the idea of baiting him. I assure the noble Lord that I did not intend to say that the Opposition would be boiled in oil. I merely thought that the vats would be suitable for that purpose, if there were a wish so to do. I can assure the noble Lord that I do not wish to do anything of the kind.
I am grateful to the noble Lord, Lord Dubs, for his courteous acceptance of the regulations, and I hope the House will approve them.
On Question, Motion agreed to.

Deregulation (Bills of Exchange) Order 1996
7.45 p.m.
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish rose to move, That the draft order laid before the House on 28th October be approved [3rd Report from the Deregulation Committee].
The noble Lord said: My Lords, this order removes unnecessary and outdated restrictions on banks which go back to the last century. It will enable them to get the full benefit of the latest computer technology and save them millions of pounds in processing costs. Under the Bills of Exchange Act 1882, the bank at which a cheque is paid in—the collecting bank—has to send it back to the branch on which it was drawn to get payment for its customer. That was the established system when the 1882 Act was passed, and it is still the system today, even though modern technology offers quicker and cheaper alternatives. Today, the essential details of a cheque are recorded electronically at the collecting bank and transmitted to the paying bank. But the law still requires the paper cheque to be sent back to the paying branch, even though this is no longer necessary for clearing.
The core provision of the order, Article 4, amends the 1882 Act to allow notification of the essential features of a cheque by electronic data to be sufficient to obtain payment. This will allow banks and building societies to retain cheques at an earlier point in the clearing cycle instead of having to send them to the paying branch.
There are two ancillary provisions. The first, in Article 3, allows banks or building societies which still want to have customers' cheques returned to opt for them to be sent to a central office instead of the individual branches. The second, in Article 5, amends the 1957 Cheques Act to allow an authenticated copy of a paid cheque the status of a receipt. All these reforms were recommended by the 1989 Jack Committee on Banking Services and accepted by the Government in the 1990 White Paper. Use of the Deregulation and Contracting Out Act allows us to give them effect.
The reforms covered by this order will relieve banks and building societies of a significant burden of cumbersome paper work and enable them to offer a more cost-effective and efficient service to their customers. At the same time, the necessary protections for the banking public will be maintained. Banks will continue to scrutinise cheques in cases of suspected fraud. Bank customers will continue to be able to stop cheques, to have them returned on a regular basis, or to see a specific cheque should a dispute arise. There will be no change in customers' legal rights of redress if banks fail in their duties towards them.
The Government are determined to cut red tape and help businesses to prosper. This deregulation order is an important measure in pursuit of that policy, and I commend it to your Lordships.
Moved, That the draft Order laid before the House on 28th October be approved [3rd Report from the Deregulation Committee.]—(Lord Mackay of Ardbrecknish.)
Viscount Chandos: My Lords, I thank the noble Lord for his clear explanation of this short order. Although it seems that he and his colleagues have been on the Benches opposite for a very long time, even those on these Benches cannot blame them for any of the shortcomings in the Bills of Exchange Act 1882. We welcome the proposals contained in the order. We were pleased to note that the Deregulation Committee had strengthened the protection of consumers in relation to notices dishonouring cheques. We feel that the position has been strengthened compared with the original draft.
I should like to ask the Minister one question relating to the principle of the attachment of funds, which was raised by the Deregulation Committee. The report says that the Treasury has concluded that the funds-attached rule cannot be amended by an order under the 1994 Act. Is the Minister confident that the position in Scotland in terms of cheque truncation is as secure and safe as he would like and as secure and safe as the position in England?
The Minister referred to the fact that these provisions were recommended by the Jack Committee in 1989. Seven years seems a long period that the banks have had to wait before an efficient and electronic system could be introduced. I wonder whether the Minister can give any indication as to why it has taken so long. Subject to those two small caveats, we commend the order to the House.
Lord Mackay of Ardbrecknish: My Lords, I am grateful to the noble Viscount for his welcome for this order. It is high time that the 1882 Banking Act was reformed. The idea of lorryloads of cheques traversing the country throughout the night from one set of banks to another in this modern day is long past its sell-by date. I suspect that the reason why it has taken some time is that we had to wait for the deregulation legislation to come in. Then of course we had to go through all the processes laid down in that Act before we reached what I might describe as the final phase this evening.
The noble Viscount asked me about the legal principle known as attachment of funds, which he suggested might complicate cheque truncation in Scotland. The Scottish Office has informed us that after an exhaustive legal analysis it concluded that fund-attached rules cannot be amended by an order under the 1994 Act. We are advised that the source of the problem is that it relates to Scots common law and not statute. But the powers available under the 1994 Act extend only to the amendment of statutory provisions and not common law provisions.
Any reform will require primary legislation, and so obviously a suitable Bill will have to be found. That of course presents some difficulties. My understanding is that being unable to tidy up that aspect will not cause a
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great problem to Scottish legislation. The noble Viscount's concern will not be justified. Perhaps I may thank him for not blaming me for the 1882 Act. After the past two days at this Dispatch Box, I feel that I am being blamed for almost everything else. I am extremely grateful to him for his support. This is a sensible measure which allows the banks to move with the times and has to be in the interests of all of us who are customers of the banks as well as the banks themselves.
On Question, Motion agreed to.

Licensing (Northern Ireland) Order 1997
7.54 p.m.
The Parliamentary Under-Secretary of State, Northern Ireland Office (Baroness Denton of Wakefield)The Parliamentary Under-Secretary of State, Northern Ireland Office (Baroness Denton of Wakefield) rose to move, That the draft order laid before the House on 30th October be approved.
The noble Baroness said: My Lords, in moving the Licensing (Northern Ireland) Order I would also like to speak to the Registration of Clubs (Northern Ireland) Order. Taken together, these two orders form a package of reforms. One deals with the licensing of premises such as public houses, hotels and restaurants, the other with the registration of private clubs in Northern Ireland to permit them to supply alcohol to members.
These orders consolidate, with amendments, existing Northern Ireland law which is contained in the Licensing (Northern Ireland) Order 1990 and the Registration of Clubs (Northern Ireland) Order 1987—by this evening's standards quite recent legislation. A wide ranging review of the laws on alcohol began in December 1992 with a review of the laws on registered clubs. A review of the licensing laws was instigated in February 1994 after it became clear that much common ground existed between clubs and licensing laws.
The orders seek to strike a balance between the need to control and regulate the sale of alcohol in a way which is effective, enforceable and equitable with the need to have full regard to the wider public attitudes. The Government consider that the main changes represent a balanced relaxation of the law while preserving the safeguards necessary to sustain sensible attitudes to drinking and prevent alcohol abuse.
I will explain first the provisions common to both orders and then those unique to each.
Articles 13 and 21 of the licensing order and Article 24 of the clubs order provide that liquor licences and club registrations, currently granted or renewed for a maximum of one year, may now be valid for up to five years at the discretion of the courts. This will free up valuable court time and is common sense.
Article 42 of the licensing order and Article 24 of the clubs order will abolish the Sunday afternoon break and allow the supply of alcohol between the hours of 12.30 p.m. and 10 p.m. on that day. The proposal brings the law in Northern Ireland into line with that of England and Wales and recognises the widespread demand from people to set their own Sunday timetables.
There is no evidence that the change to the law in England and Wales has led to an increase in alcohol consumption.
Article 59 of the licensing order and Article 33 of the clubs order again bring the law in Northern Ireland more closely into line with England and Wales by the introduction of children's certificates which will enable young people under 18 to be in licensed premises and registered clubs up to 9 p.m. provided that they are accompanied by an adult. Children have been allowed into the bars of sporting clubs in the province for many years.
I turn now to proposals unique to licensing law. Article 5 creates three new categories of premises which may be licensed, these being guest houses, conference centres and higher education institutions. There has been a considerable demand from the public to have a drink with a meal in guest houses, and the Government, with the strong support of the Northern Ireland Tourist Board, believe that this limited extension will assist Northern Ireland's tourism industry. In addition, one of the fastest growing businesses in Northern Ireland is the conference industry and the Government believe that this industry should be given every opportunity to compete for its share of the market. The Province's two universities host a number of events and conferences and this proposal will provide them with a greater degree of flexibility.
Article 5 also provides the powers under which regulations may be made specifying the conditions under which shops and supermarkets in Northern Ireland may sell alcohol alongside other goods. Regulations will be put in place to ensure that, amongst other things, stores set aside a designated area for the sale of alcohol.
Article 45 deals with small public houses which cannot supply food or entertainment and, under the present law, cannot have late licences. It is therefore proposed that such pubs will be allowed up to 20 late licences a year, and the Government are confident that this small concession will be warmly welcomed.
Article 51 deals principally with the conditions as to the sale of intoxicating liquor in restaurants where the Government are bringing forward a number of changes. The sale of alcohol will continue to be ancillary to the purchase of a main table meal. To curb the possibility of premises masquerading as restaurants when they are really discos and the like, it has been decided to introduce a provision prohibiting the charging of an entrance fee.
Articles 67 and 68 seek to strengthen the law in relation to the presence of alcohol at unlicensed entertainments or unregistered clubs. The new provisions prohibit alcohol at any entertainment outside of licensed premises or registered clubs and place the onus on the organiser to prove that it is not being held for private gain. Rights of entry have been provided to the police to investigate suspected breaches of the law.
Many of the proposed changes in licensing legislation should help make Northern Ireland a more attractive holiday destination and benefit the economy.
I will now detail proposals unique to clubs law. Articles 3 and 15 are related. Article 3 tightens the existing restrictions on the sale of alcohol in clubs which
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have ceased to be registered. This provision outlaws the presence of alcohol in such premises and introduces an automatic five-year disqualification for clubs convicted of this offence.
Article 4 strengthens the existing laws by providing that, during the waiting period prior to a court hearing of an application for registration, clubs must have in place certain rules designed to demonstrate their ability to operate within the law. This is coupled with a relaxation of the existing laws, whereby the waiting period to be served by clubs before their applications for registration can be dealt with by the courts will be reduced from two years to one.
Article 26 contains an amendment which will increase, from 20 to 52 times in any year, the number of special occasions on which a club may supply alcohol to 1 a.m. The figure of 20 was fixed in 1987 and it now seems reasonable to permit clubs to enjoy an average of one late night each week throughout the year, subject to police approval.
Article 40 contains significant changes to the existing law by enabling the manner in which accounts are to be kept and presented to be prescribed. The 1987 Clubs Order contained among other things provisions to combat racketeering in the affairs of some clubs. The Government believe that it is vital that all registered clubs should manage their financial affairs in a responsible manner.
Article 42 gives the RUC wider powers of entry and inspection so that clubs can be policed more effectively.
Article 43 will introduce a penalty points provision under which points will be attributed for certain offences relating to the keeping and presenting of accounts. It is aimed at clubs that commit serious or persistent breaches of the law in relation to their accounts. Well run clubs have nothing to fear from this proposal.
I hope that your Lordships will accept that the proposals which I have dealt with tonight comprise sensible relaxations in the law while maintaining essential safeguards. I beg to move.
Moved, That the draft order laid before the House on 30th October be approved.—(Baroness Denton of Wakefield.)
8 p.m.
Lord Williams of Mostyn: My Lords, I am grateful for the Minister's clear introduction. Both these Orders appear to offer workmanlike legislation, particularly set in the context, which I thoroughly endorse, of the importance of tourism in all its aspects to the economy of Northern Ireland.
I was listening carefully when the Minister said that the Clubs Order would provide not more than one late night each week. If only we were so lucky in your Lordships' House.
Baroness Denton of Wakefield: My Lords, I suspect that those of us who work on Northern Ireland business experience even more late nights than others, but I thank the noble Lord for his support.
On Question, Motion agreed to.

Registration of Clubs (Northern Ireland) Order 1997
Baroness Denton of Wakefield: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the draft order laid before the House on 30th October be approved.—(Baroness Denton of Wakefield.)
On Question, Motion agreed to.
Viscount Long: My Lords, I beg to move that the House do now adjourn during pleasure until 8.35 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.4 to 8.35 p.m.]

Police Bill [H.L.]
House again in Committee.
Clause 89 [Authorisations to interfere with property etc.]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 71:
Page 33, line 4, at beginning insert ("Subject to subsection (1A),").
The noble Lord said: In moving this amendment, I shall also speak to the substantive amendment, Amendment No. 72. Amendment No. 71 is simply a paving amendment to provide for the amendment that states:
"This section shall not … apply where information or evidence obtained through the use of wireless telegraphy, if it were in documentary form"—
that is, telephone tapping—
"would be subject to legal privilege; or … permit a police officer to interfere with any property which may be subject to legal privilege"—
namely, bugging—
"unless and until a production order under the Police and Criminal Evidence Act 1984 has been obtained, or any other necessary requirement under that Act has been complied with in relation to such material".
The amendment goes on to state that legal professional privilege,
"has the same meaning as that given to it in section 10 of the Police and Criminal Evidence Act 1984".
I do not think that I can over-emphasise the importance for our legal system of legal professional privilege. I am not much of a one for professions, and I am not much of a one for privilege. But the basis that a client's legal professional privilege—in other words, his communications with his lawyer—are confidential and shall remain confidential is quite fundamental to the administration of justice in this country. That was confirmed as recently as 25th October 1995 by the Judicial Committee of this House under the then Lord Chief Justice, the noble and learned Lord, Lord Taylor of Gosforth. He emphasised that it was a fundamental condition that legal professional privilege exists, and upon that the administration of justice as a whole rests.
Once a document is protected by legal professional privilege, this continues to be protected so long as the privilege is not waived by the clients. The maxim, "once privileged, always privileged", has been re-emphasised, which is of importance to the administration of justice, the solicitor's client and the solicitor's profession.
The Lord Chief Justice said on that occasion:
"Legal professional privilege is thus much more than an ordinary rule for evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests.
"It is in the wider interest of all those hereafter who might otherwise be deterred from telling the whole truth to their solicitors. For this reason I am of the opinion that no exception should be allowed to the absolute nature of legal professional privilege, once established".
In the Police and Criminal Evidence Act 1984 there are specific safeguards for this material. Items subject to legal privilege or excluded material, or special procedure material, are defined in Sections 10 to 14 of the Police and Criminal Evidence Act. What that provides is very comparable to that provided in our Amendment No. 72—in other words, none of the bugging procedures or telephone interception procedures which are now provided for in this Bill, and which were not subject to statutory control under the 1984 Act, can override the conditions of the Police and Criminal Evidence Act.
This amendment is very narrowly drawn. It refers only to legal professional privilege. It does not, as it might have done, refer to the issue of journalists who may have a need to protect their sources. It may be that we will have to return to that matter in due course but, for the present, the protection of professional legal privilege—which is provided under the Police and Criminal Evidence Act—ought to be provided under this Act. I beg to move.
Lord Taylor of Warwick: I have two points to make about this proposed amendment. Most lawyers are professionals and care passionately about the reputation of their profession. Speaking as a barrister, the legal profession would welcome the fact that it would not be exempt from the provisions of this Bill so as to ensure so far as possible that no lawyer would be tempted to abuse the privileged position in relation to a client.
Imagine for a moment if lawyers did have the protection in terms of the exemption. A vulnerable lawyer—and there are vulnerable lawyers for all sorts of reasons—could be the target of the organised crime world. So this exemption, if it pertained to lawyers, could become a Trojan horse for criminals to hide inside. I am against the proposed amendment.
Lord Thomas of Gresford: I fundamentally disagree with the noble Lord, Lord Taylor of Warwick. I have been in a jurisdiction where I have known what it is like to have to go outside into the open air to talk to my client. I have known what it is like to fear that the room where I am staying is bugged and that every telephone conversation that I make is recorded. We are very fortunate in this country that we do not have these restrictions placed upon us.

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I fully support the proposal in the amendment that legal professional privilege should be extended—notwithstanding the powers that are granted in this Bill.
Although we face a wave of serious and organised crime, nevertheless there is a price which must be paid for the loss of fundamental freedoms. One of those freedoms is the ability to consult with one's client freely and fully and, from that consultation, so to advise him as to what he should do, to work together and bring about justice. Because one is acting in a criminal case for a defendant does not mean that one ever loses sight of the fact that justice is the ultimate goal and what we are seeking to achieve. Legal professional privilege permits frank discussion and frank advice.
8.45 p.m.
Lord Ackner: The noble Lord, Lord Thomas, reminds me that it was little more than a quarter of a century ago that I appeared in a case in Uganda. The president was then Mr. Obote. I and my junior—who is now a senior judge in the Court of Appeal—reckoned that the only safe place to carry on any conversation was in the swimming pool, which we did frequently.
The former Lord Chief Justice, Lord Taylor, has been quoted from the case of the Derby Magistrates. Lord Taylor was not making any law, he was merely following what had been laid down many, many decades earlier. I shall give your Lordships a flavour of this. He quoted a number of cases but there are three in which former Lord Chancellors gave the speech. Go back more than 150 years to Bolton v. Corporation of Liverpool. The defendant in civil proceedings sought inspection of the plaintiff's case to counsel to advise, though not apparently the advice itself, and filed a bill of discovery in equity for that purpose. He failed, and the Lord Chancellor, Lord Brougham, said:
"It seems plain that the course of justice must stop if such a right exists. No man will dare to consult a professional adviser with a view to his defence or to the enforcement of his rights. The very case which he lays before his counsel, to advise upon the evidence. may, and often does, contain the whole of his evidence, and may be, and frequently is, the brief with which that or some other counsel conducts his cause. The principle contended for, that inspection of cases, though not of the opinions, may always be obtained as a right, would produce this effect, and neither more nor less, that a party would go into court to try the cause, and there would be the original of his brief in his own counsel's bag, and a copy of it in the bag of his adversary's counsel."
And then the Lord Chief Justice refers to numerous cases throughout the nineteenth century, repeating the same theme, and refers to Holmes v. Baddeley, where the Lord Chancellor, Lord Lyndhurst, said this:
"The principle upon which this rule is established is that communications between a party and his professional advisers, with a view to legal proceedings, should be unfettered; and they should not be restrained by any apprehension of such communications being afterwards divulged and made use of to his prejudice. To give full effect to this principle it is obvious that they ought to be privileged, not merely in the cause then contemplated or depending, but that the privilege ought to extend to any subsequent litigation with the same or any other party or parties … The necessary confidence will be destroyed if it be known that the communication can be revealed at any time."
And then in the third case, a very senior judge, Sir George Jessel, Master of the Rolls, said:
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"The object and meaning of the rule is this: that as, by reason of the complexity and difficulty of our law, litigation can only be properly conducted by professional men, it is absolutely necessary that a man, in order to prosecute his rights or defend himself from an improper claim, should have recourse to the assistance of professional lawyers, and it being so absolutely necessary, it is equally necessary, to use a vulgar phrase, that he should be able to make a clean breast of it to the gentleman whom he consults with a view to the prosecution of his claim, or the substantiating of his defence against the claim of others; that he should be able to place unrestricted and unbounded confidence in the professional agent, and that the communications he so makes to him, should be kept secret, unless with his consent … that he should be enabled properly to conclude his litigation."
There are more in that vein but I think those are sufficient to show how well established the rule is.
Lord Lester of Herne Hill: I had not intended to speak on this amendment but, having heard several noble Lords testify from their personal experience, perhaps I may simply say that I have had the misfortune, like my noble friend Lord Thomas, to have argued cases in two common law jurisdictions (both describing themselves as democracies under the rule of law) where it became apparent that electronic surveillance devices had been planted throughout my hotel rooms on one occasion and, on the other occasion, in the prison and detention centre. Both cases involved serious constitutional issues. I only discovered that fact by employing the services of a secret police officer from another jurisdiction who swept my hotel rooms and discovered what was happening. I can only say that it had quite a catastrophic effect on my client in one of those cases in sapping her will in circumstances which I do not wish to go into at present.
I regard the retention of professional privilege against electronic surveillance in the circumstances described by the noble Lord, Lord McIntosh, as fundamental to the effective protection of basic rights and freedoms. I would deplore it if this Committee were not to take that view.
Lord Mackay of Drumadoon: There is no doubt that we are discussing significant amendments. If they were acceptable to the Committee, they would seek to change and restrict the powers contained in Clause 89. Picking up as they do the definition of items subject to "legal privilege" in the Police and Criminal Evidence Act 1984—which, in passing, I observe does not apply to Scotland, which of course this Bill is designed to do—they seek to introduce into the Bill a protection in all circumstances against any infringement of legal privilege.
The way in which the Bill is framed is quite deliberate. There are no statutory exemptions to the provisions as set out in Part III. That was a decision taken by government in the light of provisions such as are to be found in the 1984 Act and in the Prevention of Terrorism Act. The Bill is designed to deal with those who engage in serious crime. As the noble Lords, Lord Lester and Lord Thomas—and, indeed, my noble friend Lord Taylor of Warwick—will be well aware, those who run serious crime tend not to get their hands dirty. They are not the ones who handle the drugs, who possess the guns, who physically rob banks or who

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engage in substantial drugs transactions. They act as businessmen and frequently set up front companies to assist them in their illegal operations. In the course of doing so they make extensive use of lawyers, the vast majority of whom are perfectly respectable members of the legal profession. Many of these criminals are such important clients of their lawyers that the lawyers will visit their homes and offices. It is not uncommon for a lawyer who has an important client to go to his client's home or to his office.
If the amendments were passed, in a situation where one was seeking to investigate a criminal whose lawyer went anywhere near his home, his office or any other place he frequented (other than the lawyer's office), it would be impossible to invoke the provisions set out in Clause 89 and onwards in the Bill. There would be a risk of conversations being overhead between lawyer and client and of communications which would fall within the definition of Section 10 of the 1984 Act coming into the possession of those carrying out the intrusive surveillance. I stress that that is a risk even when one is not dealing with a lawyer who has passed from the straight and narrow. However, as my noble friend Lord Taylor very properly reminded the Committee, lawyers do, for a variety of reasons, depart from the rules of the profession. I give way to the noble Lord.
Lord Thomas of Gresford: Can the noble and learned Lord indicate whether there is an exemption within the Bill for lawyers' offices and chambers?
Lord Mackay of Drumadoon: There is no such exemption in the Bill, for the obvious reason that, if there were to be one, it would alert criminals to consult there and there alone for the sole purpose of furthering their illegal activities and frustrating the purpose of the Bill.
The noble Lord, Lord Thomas, says that when a man is charged with a criminal offence and is due to stand trial he has a right to consult his lawyer in private, without the cell or the chambers—or, indeed, wherever—being bugged. I do not depart from that at all in saying that that is a very important principle to be borne in mind. But, equally, those who engage in serious criminal activity do so year in and year out as a business. Experienced lawyers like the noble Lords, Lord Thomas and Lord Lester, will be well aware that major criminals frequently go for years without having to consult their lawyers for the purposes of defending a criminal charge. They are not the ones who are caught: it is the lesser individuals who do the work for them who are caught. They are running their businesses along the lines of legitimate businesses. They stay in the posher parts of town, they occupy offices and they behave as if they were as respectable as any Member of this place. That is the evil which the Bill is designed to attack. That is why it would be impossible to frame an exemption which protected—
Lord Lester of Herne Hill: I apologise to the noble and learned Lord for interrupting him, but I am puzzled
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by parts of his response. I thought that it was common ground in this place—and, indeed, in this country—that part of our ancient freedoms involved the presumption of innocence and the protection against self incrimination, together with the notion that a man is not to be condemned until proved guilty by his peers.
The noble and learned Lord has been using words like "criminals" and referring to people who are guilty of criminal wrongdoing. I agree with him that there is a serious mischief which needs to be tackled with effective powers. However, does the Minister agree that the amendment now before the Committee seeks to ensure that someone accused of a serious crime will, nonetheless, be protected according to the presumption of innocence? Does he also agree that the police will not be able to invade the confidentiality of professional privilege in a way that will enable the prosecution to take an unfair advantage in breach of ancient common law freedoms? What protection will there be against violation of the presumption of innocence and the privilege against self-incrimination, as well as legal professional privilege, if the amendment is not introduced?
Lord Mackay of Drumadoon: There is nothing in the Bill designed to attack the presumption of innocence; indeed, that is a fundamental principle of any criminal proceedings in this country and will remain so. The judges are there to ensure that it remains. As regards the privilege against self-incrimination, if the suggestion is that what defendants or accused persons say prior to being arrested and standing trial can in no circumstances be admissible against them in evidence, then I demur. If in casual conversation, whether with lay members of the public or lawyers, something comes out, then, in certain instances, it may be admissible in evidence. The real protection is that, when the case comes to trial, it is for the trial judge to decide whether there has been anything unfair about the circumstances in which the evidence was collected. If there has, then, as the 1984 Act makes clear in England—and as the common law makes clear in Scotland—it would be perfectly open to the judge to exclude that evidence as having been unfairly and improperly obtained.
9 p.m.
Lord Thomas of Gresford: Are we now to understand that the Bill provides for the bugging of the cell, the interview room, the solicitor's office, and the barrister's chambers? Never mind about what happens in court; that would be the greatest invasion of the liberty of the subject that one can recall in the criminal practice and procedure of this country.
Lord Mackay of Drumadoon: As the noble Lord knows perfectly well, the Bill makes no such provision.
Lord Thomas of Gresford: Does it prevent it?
Lord Mackay of Drumadoon: Clause 89(3) provides that, where the authorising officer, who is a police officer of the highest rank, thinks it necessary for certain action to be taken and is satisfied that that action

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seeks to achieve what cannot reasonably be achieved by other means, then and then alone he can authorise intrusive surveillance. His actions are to be subject to the supervision of a commissioner who will have held or is holding office in a most senior judicial position.
That chief officers of police in this country will bug the cells of people who are awaiting trial and do so with the co-operation of the Prison Service is, with the greatest respect to the noble Lord, a fanciful suggestion.
Lord Browne-Wilkinson: Will the Minister confirm that if they did so, it would be lawful under the Bill?
Lord Mackay of Drumadoon: It would not be illegal in the sense that it is explicitly prohibited. I submit that it would be entirely contrary to a proper discharge of the duties of the senior officer concerned. In order to take such action he would have to satisfy himself that it could not reasonably be achieved by other means.
Lord Browne-Wilkinson: It being lawful, would the commissioner have any jurisdiction to entertain a successful complaint?
Lord Mackay of Drumadoon: As the noble and learned Lord will know, the commissioner's powers are in Clause 94 and in Schedule 7 to the Bill. His duty is to keep under review the performance of functions under Clauses 89 and 91. I find it impossible to understand the circumstances which would justify a chief constable taking the action suggested by the noble Lord, Lord Thomas. For that reason, I find it perfectly easy to understand that the commissioner would intervene in such a situation if a complaint were made. Furthermore—again, I find it impossible to contemplate—if chief constables were going to do that, I have little doubt that the commissioner, who will have held or be holding high judicial office, would immediately report that to the Prime Minister as being a use of the Bill which was never intended by the Government.
It is easy, I submit, to imagine all kinds of circumstances in which the spirit of this legislation could be got round. However, let us turn the argument round the other way, and consider the practical example that I give the Committee. Those engaged in carrying out serious criminal activities are regularly in touch with their lawyers. Without any difficulty a situation could be brought about whereby this whole part of the Act would be virtually if not completely useless. That is a practical problem with which the Government have had to cope; and, I respectfully suggest, it is a practical problem with which the Committee has to cope. Unfortunately there can be little doubt that if the amendments were to be passed by the Committee in the present form it would frustrate immediately intrusive surveillance of people who might be of considerable interest to chief constables when they exercise these powers. And it would ignore the fundamental principle of our criminal system of justice: that it is for the trial judge to decide what evidence is admissible, not the police or anyone else.
Lord Thomas of Gresford: The noble and learned Lord has said that it would be an abuse of the Bill as
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proposed for the authority—the authorising person—to bug the cell, interview room, solicitor's office or barrister's chambers. Will he give an undertaking that that will be made perfectly clear in the Bill, and in the code, and that proper guidance will be given to those who have to take those decisions?
Lord Mackay of Drumadoon: The noble Lord will be well aware that I cannot give any guarantee on behalf of those upon whom it will fall to implement the provisions. However, perhaps I may remind the noble Lord of Section 10(2) of the Police and Criminal Evidence Act 1984. It states:
"Items held with the intention of furthering a criminal purpose are not items subject to legal privilege".
Even if the amendments were passed, if there were clear evidence that criminal activity was being carried out in a prison cell, between a lawyer on the one hand and an accused on the other, the amendment would not catch that. That begs the question whether a chief constable would be minded to exercise those powers in view of the hurdles that he has to overcome.
With respect to the noble Lord, he cannot have it both ways. If we go to what the English law sets out as legal privilege, the amendments would not protect the situation. On the other hand, if one approaches it in the way that I invite the Committee to approach it—on the basis that we are dealing with very serious criminal activities, we are entrusting the responsibility to highly experienced and trained lawyers, and leaving it to the trial judge to decide whether or not the evidence is admissible—I submit that there is a perfectly fair balance between dealing with the purports of legal privilege on the one hand and (I understand the Committee to be united on this) the importance of trying to do something about serious crime on the other.
Lord Thomas of Gresford: The noble Lord must know that legal professional privilege does not cover iniquity. There is no legal professional privilege if a conspiracy exists between the lawyer and the client. What we are talking about is the ordinary situation where perfectly proper legal advice has been given, on many occasions advice to a client to plead guilty having regard to the instructions which he has given. Is this all to be subject to bugging?
Lord Mackay of Drumadoon: The answer to that question posed by the noble Lord is no, because in my submission it would be impossible to bring that within the provisions of Clause 89(3)(a), which talks about the prevention or detection of a serious crime. If the crime has been committed and the accused is in custody, it is difficult to see how bugging would achieve either of these objectives.
Lord Ackner: Before the noble and learned Lord sits down, I wonder if he can help me as to how he envisages the functions of the trial judge. Is the trial judge to carry out a sort of balancing exercise, the interest of the client in non-disclosure being balanced against the public interest in seeing that justice is done?
Lord Mackay of Drumadoon: As a humble Scots lawyer, I would enter with a measure of trepidation into

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the question of how judges in England should apply the provisions of Section 78 of the Police and Criminal Evidence Act of 1984. What it provides, as will be well known to many Members of your Lordships' Committee, is a means of dealing with the admission of evidence which would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. That, put in statutory form, is similar to the test in Scotland and I have no doubt whatsoever that judges faced with this new legislation will apply the existing principles to any new provisions that Parliament has enacted. Fairness of the proceedings has always involved, as I have understood it, fairness to the accused or the defendant on the one hand, and fairness to the prosecutor and the public for whom he presents a case on the other. I have little doubt that the judges will be able to cope with that, as no doubt they would have had no difficulty in coping with Section 78 when it was first enacted.
Lord Ackner: Can my noble and learned friend indicate how one assesses fairness to the accused where you are contemplating disclosing documents which are the subject of legal professional privilege?
Lord Mackay of Drumadoon: At this stage we are dealing with intrusive surveillance and the question of admitting evidence, as I understand it, which has been listened to by some means that has involved bugging of one sort or another. As the code will make clear and as indeed is implicit in Clause 89(3)(b) of the Bill, if one were dealing with documents they would fall to be dealt with by search warrants, which would come under the 1984 Act. I think that the practical example posed by my noble and learned friend is one which would be solved by another route.
As I think was made clear by my noble friend Lady Blatch during the Second Reading, a draft code relating to intrusive surveillance has been lodged in the Library and I may make mention of it later on in speaking to the amendments which follow. At this stage I am certainly prepared to give a quite unequivocal undertaking that, it being only a draft code, practical problems such as that raised by my noble and learned friend will be looked at to see whether any addition or amendment to the code would be appropriate. Perhaps at this stage, to forestall any further questions that may arise, I could draw the attention of your Lordships to Amendment No. 137 on the Marshalled List, which makes it clear that this part of the Bill will not come into force until a day falling upon the day on which the code of practice issued under Section 92 of the Act comes into operation.
Lord Lester of Herne Hill: Before the noble and learned Lord sits down, I wonder whether he would be kind enough to clarify one point that is still perplexing me. In answer to the question put by the noble and learned Lord, Lord Browne-Wilkinson, the noble and learned Lord indicated that were intrusive electronic surveillance to take place, for example, in a barrister's chambers, that would be lawful under the Bill as it stands, though, as he said, it would be an abuse.
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What I do not understand is what remedy the victim of a breach of personal privacy or the abuse of electronic surveillance would have. Am I right in thinking that the code, in whatever form, is not to be a code that gives rise to an effective legal remedy? I think that is made clear. If that is correct, does the Bill contain any right to an effective remedy for damages or any other remedy for the victim of abusive, intrusive electronic surveillance, breaching legal professional privilege in the way that has been indicated?
9.15 p.m.
Lord Mackay of Drumadoon: The short answer is no, in so far as one is dealing with rights to damages, and so on. The individual has a remedy in that his rights at his trial will be protected. Whether he has suffered any breach of his rights under the European convention and whether any remedy lies there is not for this House to determine in any capacity; it is a matter for the European Court. The Government are satisfied that the Bill as drafted meets their obligations under the convention. Were somebody to challenge that view at a later date, any such proceedings would be defended.
Lord McIntosh of Haringey: The noble and learned Lord the Lord Advocate is a fair-minded and rational man, but he is in an impossible position. It does not do any good for him to say that he is a humble Scots lawyer. He represents the Government; he expresses the collective views of the Government; he has no let-out in that respect. I am the only non-lawyer taking part in this debate and I do not seek to make any excuses on those grounds.
Lord Mackay of Drumadoon: I appear here on behalf of the Government. I do not offer the fact that I am a Scots lawyer as an excuse. However, I defer to other Members of the Committee, particularly the noble and learned Lords on the Cross-Bench, in their knowledge of English law. Were I not to do so, I do not think I would be described as a fair-minded man in the way the noble Lord kindly mentioned a moment ago.
Lord McIntosh of Haringey: I accept that, We are not concerned with personalities or background; we are concerned with arguments. That is the only thing we are concerned with today.
The noble and learned Lord the Lord Advocate has sought to justify a position in which, as he admits, it will be legal under this Bill—and this is a new statutory power—to bug any premises, to tap any conversation, provided that a chief officer of police has given permission for it. He described the provisions in the drafting of this part of the Bill as deliberate. It is indeed deliberate. Let us look at Clause 89(1):
"No entry on or interference with property or with wireless telegraphy shall be unlawful if it is authorised under this section".
The double negative is clearly deliberate. It is designed to make the possibilities of telephone tapping and wire bugging as wide as possible by ensuring that the only illegality arises in circumstances that are spelt out in detail in this part of the Bill. That is a deliberate way of ensuring that the fail-safe position for legislation is that

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telephone tapping and bugging are legal under every conceivable circumstance except those circumstances which are specifically provided for in this Bill. I suggest that that is fundamentally opposed to the constitutional principles of this country.
Even in his practical examples the noble and learned Lord the Lord Advocate finds himself in contradiction with his own arguments. He described, quite rightly, the extent to which serious and organised crime is conducted by people he described as businessmen, people who do not dirty their own hands with the details, who do not carry the guns, who do not transport the drugs, who do not consult their lawyers. Those people leave it to their henchmen to deal with lawyers because it is their henchmen who are likely to come before the courts. Those businessmen will not be affected by this amendment; they will not be talking in barristers' chambers, solicitors' offices or prison cells. They are exempt because of their own separation from the dirty end of the crimes that they inspire.
The noble and learned Lord the Lord Advocate said that the principle of legal professional privilege was "an important principle to be borne in mind". The only possible construction one can put on that phrase is that it is an important principle to be borne in mind and then discarded, because the noble Lord the Lord Advocate has discarded it. He has specifically admitted that it is legally possible under this part of the Bill as drafted for bugging to take place, if authorised by a chief officer of police, in barristers' chambers, solicitors' rooms or prison cells. He described it as inconceivable that it would actually happen, but I suggest to the Committee that it is our responsibility to see that the law says that it should not happen.
It is not up to us to depend on the goodwill of anybody after the legislation has been passed. Because the contradictions of his arguments are so severe he went so far as to argue at the end that, if these amendments were carried, the whole fight against crime—again I quote him—would be "virtually if not completely useless". Ministers do not go over the top in that way unless there is something profoundly wrong with their arguments.
The noble and learned Lord the Lord Advocate knows perfectly well, and he has been reminded of it by distinguished lawyers in the course of the debate, that the professional privilege of the crooked lawyers about whom he spoke is not protected because of the doctrine of iniquity. He knows that perfectly well. Yet he chose to put before the Committee the argument about crooked lawyers misusing the system.
There are two parts to Amendment No. 72. I admit that the first part is capable of improvement, in the sense that it talks about telephone tapping and does not sufficiently say that the telephone tapping which should be unlawful is telephone tapping in conditions of legal privilege; in other words, in a solicitor's office, a cell or barrister's chambers. Furthermore, it does not sufficiently recognise the only valid point which could be raised against the amendment; namely, that inadvertent tapping of the other side—the client's side—
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of a legally privileged conversation would be difficult to avoid. To that extent the first part of my amendment is defective.
Lord Mackay of Drumadoon: Do I correctly understand the noble Lord to be accepting that if someone engaged in serious crime was on the telephone to his lawyer, using an audio phone so that everyone in the room could listen, and a bug picked up what was being said not only by the person engaged in the serious crime but by the lawyer at the other end, there would be nothing wrong with that, but that if the bug was at the other end of the phone there would be something wrong? If so, if there is any illogicality in the discussion that we have had on this amendment, I respectfully suggest that it lies in that observation.
Lord McIntosh of Haringey: I did not say that. I was talking about telephone tapping not about bugs in a room. I thought that I was being helpful to the noble and learned Lord. But I acknowledge that that part of the amendment needs further thought if it is to be adequately defined. To that extent I am satisfied that the amendment ought not to be pressed.
However, the other part of the amendment—paragraph (b)—which refers to interference with property, which is bugging and not telephone tapping, seems to me to have survived without any serious criticism from the noble and learned Lord or indeed from anybody else in this debate. It seems to me that the part of the argument concerning legal professional privilege, which is held in such high regard not only by the lawyers who have been quoted and the lawyers who have taken part in this debate but by all those who are concerned with the rule of law, has by no means been answered by the noble and learned Lord the Lord Advocate.
It is 9.25 p.m. and I do not suppose that enough Members of the Committee have had a full opportunity to consider the issues involved. I believe that there is further scope for discussion, and hope that the noble and learned Lord the Lord Advocate will be kind enough to agree to that between now and Report stage rather than that I should press this amendment at the present time. But I believe that on calm reflection he will realise that the position in which the Government put themselves is not only in conflict with everything that has been said by senior lawyers in the courts but in conflict with the provisions of the Police and Criminal Evidence Act 1984 and in conflict with much previous legislation which has recognised the responsibilities and rights of legal professional privilege.
I should like to talk to the noble and learned Lord about these issues between now and the next stage of the Bill. If he will agree to do that, I shall beg leave to withdraw the amendment.
Lord Mackay of Drumadoon: I am happy to discuss anything, particularly the detail of this matter, with the noble Lord. Whether on calmer reflection my views will alter remains to be seen. However, it is an important matter and I give a clear undertaking that I shall discuss

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it with him fully and, indeed, any other Member of the Committee who wishes to approach me or my noble and learned friend.
Lord McIntosh of Haringey: I am grateful to the noble and learned Lord. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 72 not moved.]
Lord Rodgers of Quarry Bank Lord Rodgers of Quarry Bank moved Amendment No. 73:
Page 33, line 6, leave out ("officer") and insert ("circuit judge").
The noble Lord said: The purpose of Amendments Nos. 73 and 74 is to substitute as the "authorising officer" a circuit judge for a chief constable or a similar person as defined in subsection (6) of Clause 89 of the Bill.
The Committee will be aware of the fifth report of the Select Committee on the scrutiny of delegated powers and I want to quote briefly from what it said about the provisions of Clause 89 and subsequent clauses. In its report the committee said,
"We do not doubt that these new powers will be the subject of intense scrutiny during the bill's passage through the House".
It went on to say,
"They affect the long-standing principle that the police cannot enter upon property without a judicial warrant."
It concluded,
"The breadth of these powers, which many would characterise as a constitutional change"—
it then goes on to refer to the code of practice. The phrase to which I wish to draw attention is,
"many would characterise as a constitutional change".
That is the nature, in the view of the committee on delegated legislation, of this and subsequent clauses, and that is why I feel it is appropriate that we discuss them even at this late hour tonight. I am speaking to these amendments to enable the Committee to debate the issues to which the Delegated Powers Scrutiny Committee drew attention. They reflect the extent to which we on these Benches have become deeply concerned about Clause 89, as drafted.
I reluctantly agree that powers similar to those in Part III are probably required to deal with serious and organised crime and also, subject to what further I may say, that if a case can be made out for them, they ought to be authorised by statute. But I do not agree, certainly on the arguments I heard on Second Reading, that such intrusive action should be a matter for the police and the police alone to authorise.
When I raised this matter on Second Reading the Minister replied,
"we considered the option of judicial warranting; that is, prior authorisation, but ruled it out. We do not believe that it is right to involve judges at the early intelligence gathering stage as regards the prevention of crime as well as the investigation of crimes that have taken place.".
The next sentence is the important one:
"There is the danger of the judiciary becoming too closely involved in the investigative process and of its impartiality being called into question".—[Official Report, 1 1 /11/96; col. 837.]
That is the argument that the Minister put forward at Second Reading—I appreciate that she did so—in response to a question that I asked her in relation to the alternative options for the authorisation to which the amendments relate. Perhaps we can look at the phrases briefly.
Is it the case that judges would become "too closely involved"? Whether or not that is the case, is it the case that their impartiality would be called into question? In so far as that might be true—I do not grant that it would be true—does the risk outweigh the safeguard that judicial authorisation would provide?
In regard to judges being involved too closely, all we would be asking for is a single act of judgment on the basis of a standard application form. The judge would have to review the lawfulness of the application against Clauses 89 and 91 of the Bill and Schedule 7. That would be the single act the judge would be involved in. I do not believe that on that basis, to quote the Minister, a judge would be too closely involved.
She also said that impartiality might be called into question. It seems to me—I stand to be corrected—that search warrants could be seen to be potentially far more threatening to the impartiality of judges than the proposals in the amendment. As the Minister said, warrants come at a later stage when,
"police can show to the judge evidence to suggest that crime has been committed".—[Official Report, 11/11/96; col. 837.]
Surely it could be far more involving because judges are acting upon the presumption or the possibility of crime. The safeguard I am proposing as an amendment to the Bill is a simple provision that the judge should authorise the intrusive operation well in advance of there being any presumption. That does not seem in any way to threaten the impartiality of the judges. If it were thought to do so, I cannot see why the answer would not be a simple one and that the authorising judge should not be the trial judge if it comes to that.
I am grateful to the Minister for the care with which she dealt with a number of points that were raised at Second Reading and those with which she did not deal on the day. She has written to several of us. One of those letters was to the noble and learned Lord, Lord Browne-Wilkinson. She used a phrase which can be contested or at least argued about. She said:
"our homes are, of course, much more likely to be violated by burglars than by the executive".
The Bill is not mainly or primarily concerned with burglars, as she described them, but with serious and organised crime. Even if that is the case, and even if at the present time our homes are less likely to be violated by the executive, we have to consider whether we are not opening the door for further developments which would make the executive increasingly intrusive.
The Minister also referred in her letter, which she placed in the Library, to the fact that the police and Customs had been successful in using these techniques, restricting their use to serious cases over the years.
Perhaps I ought already to know—I apologise to the Committee if the information is readily available—how many cases in a convenient period there have been of authorisation by chief constables of intrusive surveillance of this kind. In so far as one assumes that chief constables have not always authorised on the basis of the applications they have received, how many unsuccessful applications have there been because a chief constable refused to authorise?
If this has been the practice in the past but, as your Lordships' House acknowledges, it has been illegal, I do not believe one can argue from what may have been a successful use of these techniques that for that reason alone it should be incorporated into the Bill. There seems to be a good case for the intervention of the judiciary.
There is also the argument, which we heard at Second Reading and which we may hear again today, that these provisions have to be made in the present form because they are involved in the Security Service Act which passed through this House earlier in the year. Here we must be cautious about a circular argument. The argument when your Lordships discussed that Bill was that the powers had to be included in it because they were already being exercised by the police. It would be an insufficient argument today to say that because the powers were included in that Bill, they now have to be embodied in this legislation.
If the Bill remains unaltered its powers will be unusual in the western world. Among the countries requiring judicial authorisation for bugging are the United States, Germany, Canada, Australia, New Zealand, France and others. I believe that the Committee may reasonably ask the Minister why we should be the odd man out: what is it about our system of administration that makes it unnecessary for us to use a provision that is found to be desirable elsewhere?
There are no practical problems in making this change to the Bill. Its substance will remain the same. It is one of the three options which were considered by Ministers and it was rejected, on the evidence so far before the Committee, only on the basis given by the Minister in winding up our Second Reading debate. It is an amendment which is easily made and I hope that the Minister will say that he is willing to consider it with the prospect of bringing forward an amendment of his own were I not to press this matter to a Division tonight.
Lord Renton: Before the noble Lord sits down, will he be so good as to explain whether the circuit judge who is to give this authorisation will have to be approached in open court or will he be expected to give it privately either in his room at the courts or at his private residence, or where? That has a great bearing on the matter.
Lord Rodgers of Quarry Bank: I assume that he will be expected to give it privately in precisely the same way as a chief constable would give authorisation today.
Lord Browne-Wilkinson: At Second Reading I drew attention at length—probably at undue length—to the
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dangers which are inherent in this Bill in the sense that the Bill's powers trench on what are traditionally known as the freedoms of the Englishman—now the freedoms of the inhabitants of the United Kingdom—in particular on the sanctity of his house.
After Second Reading the noble Baroness, Lady Blatch, responded by sending me a letter setting out in detail the Government's response. I am very grateful to her for that letter. It has been deposited in the Library. I shall not risk wearying the Committee by going through the whole of what I said at Second Reading, but I shall, if I may, shortly remind the Committee of what I said. I am very anxious that this should not be seen as a lawyer's playtime because we are talking about constitutional freedom. I hope that all Members of the Committee will have regard to that, not as something which is a lawyer's matter or a political matter, but as something which it is the responsibility of this House and others to protect; namely, not to tolerate the erosion of freedom more than is necessary to meet an objective.
I said at Second Reading, and I repeat, that I am very much in favour of the police having powers to use modern methods of surveillance against serious, organised crime, such as drug dealing, money laundering and white collar fraud. There was some indication in the noble Baroness's letter that I really did not have that view. If that was thought it is wrong. I am not soft on crime, I am tough on crime, but I am steely on freedom. I pointed out at Second Reading that the powers conferred by this Bill go much wider than necessary for dealing with the evils which we are all agreed need to be dealt with.
Serious crime is defined in extraordinarily wide terms—much wider terms than the matters that your Lordships have been considering. I gave as an example a protestor against the Newbury by-pass who within the meaning of the Bill would be engaged in serious crime. As I read the letter from the noble Baroness, the Minister does not deny that within the meaning of the Bill he would be engaged in serious crime. The answer that has been given by the noble and learned Lord the Lord Advocate—it is an answer that recurs—is that it comes within the powers of the Bill, but in practice it will not happen.
I also drew attention to the fact that this was not simply a question of putting bugs in a villain's property. The Bill authorises the bugging, entry and search, and the doing of any other act not simply on the property of the suspected villain but on any property in the area of the particular police authority if in the view of the chief constable it is necessary for the prevention or detection of a crime. Therefore, an employer's premises are liable to be bugged, entered and searched. I gave the example of the investigative journalist who had a valuable lead, such as the laundering of drug money, but, in accordance with ordinary journalistic practice, refused to disclose his source. The police might reasonably think that if they could discover his source they would have a powerful weapon and that therefore they could bug the home of the journalist and the newspaper offices, enter those offices and so on. I suggest that no one in this Chamber believes it is right that that should be done. Why are we conferring powers to do it?

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That brings me to the fundamental point directly in issue in this amendment. I hope that the Committee will bear with me for a moment or two while I explain the point. Your Lordships' right and my right to home and property free from state interference and police invasion depends upon one principle only. That principle was established by Entick v. Carrington, although it was thought to exist before that date. The principle is that the state, its officers, the police—anybody—have no greater power to enter your Lordships' property or mine than has any other person. Officers of the Crown cannot invade our property. If they do the courts regard it as illegal. If the act can be detected in time it will be restrained by injunction; if not, it gives rise to damages. That is the only safeguard against state intervention in our privacy. In this Bill that safeguard is being eroded very substantially.
If it is necessary to take that step in order to achieve the desirable object of pursuing serious crime, so be it, but up until now, with the (to my mind) appalling aberration of the extension of the security services in a Bill passed earlier this year, the only right enjoyed by the state to invade property is under the warrant of a court. Why not the warrant of a court in this case? Why should there not be the protection of an independent person?
The noble Baroness in her letter states that the Government have considered that matter but have decided that the independence of the judiciary may be prejudiced by being seen to be involved in the detection of crime, not simply the trial of it. That is not an objection that has ever been put forward to prevent an ordinary search warrant being issued by the judiciary in the detection of crime. It is part of the judicial function.
I have also made inquiries at the highest level to see what inquiry has been made by the Minister of the judiciary as to whether it thought this was a gross prejudicing of its integrity. At the highest level that I could reach, which was fairly high, I am aware of no discussion between the Government and the judiciary as to whether it feels that it is prejudiced by it.
We have heard from the noble Lord, Lord Rodgers, that throughout the common law world, including New Zealand, before the state or its servants enter one's property covertly or openly, judicial warrants are required.
I have seen nothing that has so far been said which shows that that cannot be done in this case. I urge on the Committee that that independent check is preserved because, let us make no mistake, we are not simply legislating for the noble Baroness, the current Home Secretary, or present chief constables, this place is being asked to make a constitutional change. Every time this is raised—and I am afraid that I rudely interrupted the noble and learned Lord the Lord Advocate to ask whether it was unlawful, for which I apologise—we are told not that it is unlawful to do these things, but that in practice it will not happen.
That is no answer to a change of a constitutional kind which confers powers. We may have—I shall not say tomorrow because that it is too dangerous—in the
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foreseeable future a different Home Secretary, different chief constables and a different political set-up, where these powers will not be used in accordance with the noble Baroness's assurances. What is being done in this case is to remove the protection. The common law will be able to do nothing if the right to invade our property is conferred on the state, in the form of the police, with no prior approval from an independent party. I suggest that the amendment is essential.
9.45 p.m.
Lord Thomas of Gresford: I cannot improve upon the words that the noble and learned Lord, Lord Browne-Wilkinson, has just put forward. Perhaps I may echo one thing that he said: this is most certainly not a lawyer's playground. One feels that the Government fail to understand what they are doing. They fail to understand the constitutional principle which is being breached by their proposals.
Since the 17th century everyone's home has been regarded as inviolate; since the 18th century it has been the rule of the common law that no executive warrant should allow an officer to invade someone's privacy, and here we are, because we face this terrible flood of terrorism, drugs and so on, throwing away basic constitutional freedoms.
We are brought up to believe in an unwritten constitution. I am sure that on the Government side there will be many people who subscribe with pride to the concept that we have an unwritten constitution, because it is said to be flexible. But when that constitution is bent towards the executive, then those of us who, perhaps by our training but for no other reason, understand what is happening, protest. I join with the noble and learned Lord, Lord Browne-Wilkinson, in that protest. I support the amendments.
Lord Lester of Herne Hill: Having heard the noble Lord speak already I shall be brief, but I should like to echo what has been said by the noble and learned Lord, Lord Browne-Wilkinson, and my noble friend Lord Thomas of Gresford. We, in this country, unlike the rest of the Commonwealth and unlike the rest of Europe do not have written constitutional guarantees of our basic rights and freedoms. In the United States the Fourth Amendment to the American constitution provides that, "The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated". That safeguard against unreasonable searches and seizures in the American Bill of Rights drew on a rich theme of English common law experience.
As my noble friend, Lord Thomas of Gresford, has said, "Every man's house is his castle" is a maxim that has been celebrated in England since the beginning of the 17th century. One of the most forceful expressions of that maxim was that of a great Conservative statesman, regarded by Winston Churchill as one of the greatest, William Pitt the Elder, speaking in Parliament in 1763. He observed:

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"The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail, its roof may shake, the wind may blow through it, the storm may enter, the rain may enter, but the king of England cannot enter, all his force dares not cross the threshold of the ruined tenement".
As the noble and learned Lord, Lord Browne-Wilkinson, has said, the most famous of all our English common law cases on this topic is Entick v. Carrington. Perhaps I may say a little about the case to those of your Lordships who are not lawyers or judges and are not necessarily familiar with the great case in our constitutional history. Entick v. Carrington was decided in 1765 and was one of a series of civil actions for damages against state officers who, using general warrants, had raided many homes and other places in search of materials connected with John Wilkes' polemical pamphlets attacking King George III and the Government. Entick sued because agents had forcibly broken into his house and seized his pamphlets, and so on. The Court of Common Pleas, presided over by Lord Camden, the chief justice, gave a judgment which has been treated by successive generations of parliaments, governments and courts as stating a fundamental constitutional principle of personal freedom. Lord Camden declared that the warrant and the behaviour that it authorised was subversive "of all the comforts of society". The issuance of a warrant for the seizure of all a person's papers and not only those criminal in nature, was what he described as "contrary to the genius of the law of England".
Exactly a century ago the American Supreme Court described Entick v. Carrington as a great judgment, one of the landmarks of English liberty, one of the permanent monuments of the British constitution. It described it as a guide to what the framers had meant in writing the Fourth Amendment to the American Bill of Rights. More recently, the American Supreme Court has explained that the requirement that no warrant shall issue but on probable cause means that the police must, wherever practicable, obtain advance judicial approval through a warrant procedure.
The Supreme Court also held comparatively recently that because the protection is not only of property but of personal privacy, so the President of the United States was not able to authorise the warrantless electronic surveillance of persons thought to be endangering national security.
I submit that this House has a responsibility to do its best to preserve our ancient constitutional freedoms and to ensure, as far as we can, that we do not pass legislation that is likely to breach the guarantees of human rights contained in the European convention. Both Houses, like the executive, are bound by the obligations in the convention.
Briefly, the position in regard to the convention is this. The ancient common law right of the individual to respect for his home, personal privacy and private papers is guaranteed by Article 8. The scope of Article 8 has been held to include professional and business activities. In a recent case the European Court of Human Rights decided that, where a lawyer's offices were searched by the German police under a warrant issued by the court but not accompanied by sufficient
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procedural safeguards of independence, there was a violation of the lawyer's personal privacy and professional secrecy.
If the Bill is passed in its current form, it will almost certainly violate Article 8 of the convention. In my view it is likely to violate it in a number of different ways: in respect of personal privacy; the presumption of innocence; the privilege against self-incrimination; legal professional privilege; and the protection of journalists' confidential sources.
I wrote to the noble Baroness the Minister to express my concern about the absence of any effective remedy for breaches of personal privacy that may arise in the operation of the powers conferred by Clause 89 unless there is some judicial safeguard of the kind contemplated by this amendment. I look forward to the Minister's reply to those concerns. The trial judge's discretion to exclude illegally obtained evidence, referred to earlier by the noble and learned Lord the Lord Advocate, is no remedy for breaches of basic civil rights and liberties that occur before the pre-trial stage.
The safeguards proposed by these amendments tabled in the name of my noble friend Lord Rodgers of Quarry Bank are moderate and workable. They run with the grain of our constitutional heritage and come some way to meet the obligations imposed on Parliament, as well as on government and the courts, by the European convention. They would at least ensure that the draconian and necessary powers contained in the Bill would be authorised by an independent judge. That is the position elsewhere among the democratic nations of other European and Commonwealth states. Surely our Parliament should require no less protection of the rights and freedoms of the people of this country.
Lord McIntosh of Haringey: My noble friends and I have not felt it possible to put our names to this group of amendments. We strongly support the proposals of the Government for statutory control of what is regrettably necessary to combat serious crime; namely, telephone tapping and bugging—in other words, intrusive surveillance. We very much regret that necessity, but recognise it as a fact of life.
Our approach to this matter has not been through the issue of authorisation of the tapping, but, as we saw in previous amendments, to attempt to strengthen the statutory powers contained in the legislation by more closely defining the circumstances in which they are to be used. We believe that if the authorisation for intrusive surveillance is properly defined, if the code of practice is effective and if there is no temptation to misuse these statutory powers, then we shall provide both a more effective fight against serious crime and more effective protection for the rights of the individual. Therefore, the concentration of our amendments this evening and in the course of the Bill has been on those matters to which I referred rather than the issue of authorisation.
However, I ask the noble and learned Lord the Lord Advocate to consider in his reply the point referred to by the noble Lord, Lord Lester, and specifically made in the opinion given by Mr. Michael Beloff QC and two other lawyers, which referred to the relevance of the

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European Convention on Human Rights. I shall not take up the time of the Committee by reading out the full 18-page judgment. However, I shall read two paragraphs from it. I ask the noble and learned Lord, to respond to those paragraphs.
Paragraph 3(j) reads:
"If enacted without substantial modifications, the proposed executive warrant power looks certain to face challenge under the Convention and eventual condemnation by the court".
Paragraph 12 states:
"In our opinion, it is seriously contrary both to this country's unwritten constitutional traditions and to the law of the Convention to remove from judges the function of supervising and authorising when property and privacy should be intruded upon to prevent or detect crime".
That is the opinion of very senior counsel—and that opinion deserves a response from the Government.
10 p.m.
Lord Ackner: I wonder whether the noble Lord could explain why he is not in favour of advanced judicial approval as apparently occurs throughout the Commonwealth and other common law countries?
Lord McIntosh of Haringey: I can only repeat what I have said. Our approach to this matter is to seek to strengthen the provisions of this part of the Bill by limiting its application to those crimes which are really serious and to those requirements for authorisation which are really necessary. If we can achieve that, it is more important than considerations of procedure.
Lord Browne-Wilkinson: What if the noble Lord cannot achieve that? The fate of his limiting amendments as concerns legal privilege has not been happy. Assume that the Government remain adamant and do not produce any limiting, where are we going to get to?
Lord McIntosh of Haringey: The noble and learned Lord requires an answer from me now. I cannot give that answer. We shall listen carefully to what the Government say in the course of this debate—as we have listened carefully in all the debates so far—and we shall consider what position to take at that time.
Lord Renton: This has been a most interesting debate on a very difficult problem. There is one factor which has not so far been referred to and perhaps my noble and learned friend the Lord Advocate will consider it when he replies. The point concerns the time factor. If we are to have serious crime prevented and detected in the way that the public require—and which is very necessary—we must make sure that the police in their attempts to prevent and detect crime do not face delays imposed by Parliament. I hope that I am not exaggerating this delay factor, but if one had to find a circuit judge, either in his private room at the courts or in his home, might not that be sometimes a serious delay
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in detecting serious crime? That is the only other factor that we should invite my noble and learned friend to consider.
Lord Bowness: Perhaps I may ask the noble and learned Lord the Lord Advocate one further question to assist me as someone who is not an eminent lawyer, as other speakers have been tonight. It has been suggested that entry onto premises for these purposes would in some way be quite unprecedented. I understand the concern and the potential constitutional implications of that; but is that in fact so unprecedented? Is there a not a whole raft of legislation which enables officials of all kinds, from all sorts of undertakings and authorities, to enter into property and upon property without the consent of the owner or the occupier? Not necessarily in connection with crime, but in terms of the precedent of entry onto private property, will the noble and learned Lord the Lord Advocate tell the Committee how many other officials and Acts allow this to happen?
Lord Mackay of Drumadoon: Perhaps I may deal first with the point raised by my noble friend. As he correctly says, there are many instances where officials from all kinds of organisations—public utilities and others—have power to enter premises. They do so not for anything as serious as the investigation and prevention of serious crime but for the purpose, for example, of checking the meter when one has not paid one's electricity bill. Off the top of my head, I could not say how many such examples are to be found on the statute book. However, it is a good example of an instance where Parliament has decided that the greater public good deserves some infringement of the important principles upon which this most interesting and useful debate has focused.
In responding to the various contributions that have been made, it is important for Members of the Committee to be reminded that the police have been exercising powers of intrusive surveillance for some time. On Second Reading the noble and learned Lord, Lord Browne-Wilkinson, raised the question of the legality of such activity. Whether or not it has been legal in the past is, in one view, neither here nor there. The whole purpose of the Bill is to put intrusive surveillance on a statutory basis and to strengthen the public protection by making the police powers explicit and legally defined—and, importantly, by subjecting police action to review by the commissioner.
Despite the fact that such surveillance has been taking place since at least 1984 under non-statutory guidelines which have been lodged in the Library of this place from that time, it has not given rise to the practical problems, let alone the outrage against constitutional conventions, that some noble Lords very genuinely feel to be the case. Equally, while the Interception of Communications Act which has some parallels at least with this Bill (involving as it does the protection of a judicial commissioner but no judicial warranting) may not be the favourite type of legislation for every Member of this place, it has not attracted the criticism which some of the arguments tonight have suggested.

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All Members of the Committee who have spoken have been concerned about the protection of the public at large, on the one hand, against the activities of those who engage in serious crime and, on the other hand, against unwarranted intervention into their homes by police officers and others who would be entitled to act under this legislation. However, a balance undoubtedly must be struck. As I am sure the noble Lord, Lord McIntosh, would concede, the correct balance is being struck to a very large extent. The noble Lord would at least join me in acknowledging that the Government are somewhere towards achieving such a balance.
As my noble friend Lady Blatch made absolutely clear on Second Reading, judicial warranting was one of the options which was considered most carefully when the Bill was being brought forward. However, having looked at the matter carefully, the Government do not believe that it is appropriate to involve the judiciary in the procedures set out in Clause 89. With intrusive surveillance the primary focus is the gathering of intelligence. As Clause 89(3) makes clear, one has in mind necessary action when one is looking to obtain something of substantial value in the prevention or detection of serious crime.
There is therefore an important distinction between the authorisations which the Bill is designed to allow, and search warrants which can be applied for and issued under the Police and Criminal Evidence Act 1984 where the application follows upon the commission of an offence. Furthermore, search warrants are documents which are required to exist and required to be disclosed to the occupier or owner of premises being searched at the time the warrant is executed. Authorisations, on the other hand, will of necessity remain private and as they are being used are most unlikely to be disclosed to anyone other than the police on the one hand and the commissioner on the other. As I have already indicated, they will be used frequently for the prevention of crime long before any particular offence may have been committed.
In some instances that one can imagine, the authorisation having been used and some information obtained, evidence will then be recovered from other sources, the accused or defendant will stand trial, and he may be prosecuted and convicted in court without anyone being aware of the existence of the authorisation. Equally, there will be other investigations which may continue for some considerable time where again it would be of the utmost importance to keep the existence and use of the authorisation absolutely secret.
Recognising that this is a clause which introduces provisions of importance, the Bill also contains important safeguards. These are found in the provisions in Clause 93 onwards relating to the commissioner. As I have already observed, he must be someone who has held or presently holds high judicial office. He will have a most important role to play in reviewing whether those who are empowered to grant authorisations have acted properly in the exercise of the powers which are given to them under this Bill.
Perhaps I may respond further to a point raised earlier by the noble Lord, Lord Lester of Herne Hill, about remedies available under the Bill. At that stage I should
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have made it clear that paragraph 3 of Schedule 7 sets out certain remedies to quash the authorisation and order documents to be destroyed, and to pay compensation. I should properly have dealt with that in a little detail earlier.
I do not think that the role of the commissioner can be underestimated. He will have the opportunity of reviewing all the authorisations which have been granted and, on a nationwide basis, ensuring that the powers set out under the Bill are operated on a uniform basis.
The noble Lord, Lord Rodgers, asked how many authorisations we might be dealing with. I do not have a complete answer to the various questions he asked. I am more than happy to undertake to write to the noble Lord with full details. However, to give Members of the Committee some indication of what is involved, I understand that during the year 1995 in England and Wales chief officers of police approved a total of 1,300 authorisations. That figure is obviously a fraction of the number of search warrants granted throughout the country during that period. I do not have available to me tonight the number granted and refused in Scotland or Northern Ireland. However, I undertake that the point will be responded to.
The Government consider that there are other disadvantages with judicial warranting. That arises primarily when one considers the provisions of Clause 89(3)(b) which requires the authorising officer to be satisfied,
"that what the action seeks to achieve cannot reasonably be achieved by other means".
That undoubtedly would involve a consideration of what other investigative techniques and what other operations could be mounted by the police rather than the intrusive surveillance which is sought.
I would suggest that it would be extremely difficult indeed for a circuit court judge or a sheriff in Scotland to make an informed assessment of that without an in-depth knowledge of the particular police force, its resources, its personnel and whatever information it was getting from other agencies. It is peculiarly an operational matter, and were members of the judiciary to become involved in an assessment of that there is the concern that it would be perceived to be a threat to the traditional impartiality of judges, placing them too firmly in the law enforcement camp rather than in the role of presiding over trials which they have traditionally performed.
I accept that search warrants are frequently granted by members of the judiciary. Some of course are granted by justices of the peace who may not perform any judicial role as such but may, as I have sought to stress, have granted them after offences have been committed, when the applicant for a warrant can come before the circuit court judge or the sheriff and explain the offence that has been committed and whatever else requires to be explained. In such an application there is no need whatever to embark on an assessment of whether a search warrant is unnecessary and what it is sought to recover could be recovered by other operational means. I submit to your Lordships that that is what moves the

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position on from the one we have traditionally dealt with and that is why it is necessary if we are, in developing this quite justified attack on serious crime, to move the show on from what we have traditionally regarded as inviolate. I venture to suggest that, perhaps understandably, the noble Lord, Lord McIntosh, is reluctant to give too—
Lord Lester of Herne Hill: If I may interrupt the noble and learned Lord the Lord Advocate, he has responded to my question as to the remedy available for a misuse of these powers by referring to Schedule 7 dealing with the investigation of complaints by the commissioner. May I ask the noble and learned Lord whether I am right in saying that in place of the right to a remedy for damages for trespass or breach of personal privacy, which has been our law in one form or another since Entick v Carrington, there is to be instead a remedy by a commissioner not exercising judicial power, and not a judge, who will be treating the matter on judicial review principles and will award compensation, not damages, not exemplary or exaggerated damages. Am I right in saying that that is to be in place of the ancient right which has been part of our freedoms for two centuries? That is the only remedy for a misuse of these powers which otherwise we would be regarded as tortious.
Lord Mackay of Drumadoon: The remedy for the granting of an authorisation which the commissioner deems it appropriate to quash is to be found in paragraph 3 of Schedule 7 to the Bill. Whether the acts which justify the commissioner quashing the authorisation and granting some remedy may also give rise to some other remedies in law would be a matter which would have to be discussed having regard to the circumstances of the case. My understanding is that when the Appellate Committee of your Lordships' House recently looked at this issue in the case of Kahn, it specifically reserved the issue of whether there was a right to privacy, the breach of which would give rise to certain remedies, as an issue which it anticipated it would have to look at in the future, but until it came before that committee it was wrong for it to express any opinion. If that was a correct view, as I am sure it was, it would be wrong for me to go any further at the Dispatch Box this evening.
Lord Lester of Herne Hill: The advice of the noble Lord the Lord Advocate is the only advice that the Committee can take on the matter. If the Committee considers it important that we should not pass a Bill which is in breach of the European Convention on Human Rights, am I right in understanding his answer to be that, if the Appellate Committee were to develop the Khan principles into an enforceable right of personal privacy, we should be complying with the convention because that will provide a safeguard which is lacking in this Bill? If that is not what he is saying, then I am afraid I do not understand the relevance of what he has just said.
Lord Mackay of Drumadoon: I am not prepared to discuss at the Dispatch Box what may happen if the
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Appellate Committee forms a view of a case which has not yet come before it. I repeat that this Bill sets out certain remedies which apply when the commissioner quashes an authorisation. What other rights may flow to the affected home owner because of any intrusive surveillance of his house would be a matter to be decided on the facts. One could imagine all kinds of situations where physical damage or possibly even personal injury to some of the occupants was caused. Whether or not that was covered by the remedies available to the commission would have to be looked at as and when he had made his adjudication and no doubt the court would determine accordingly.
As I understand the draftsman's intention, while it is clear that the decisions of the commissioner should not be subject to appeal or liable to be questioned in any court, the fact that payment of compensation is ordered by the commissioner does not exclude any other remedies which an affected proprietor may have.
As far as the position under the European convention is concerned, as the noble Lord, Lord Lester, has informed the Committee, a letter was sent to my noble friend dealing with the issues which may arise under the convention. Perhaps I may inform the noble Lord, Lord McIntosh, that I have not seen the opinion of Mr. Michael Beloff and others, and I understand that neither have my officials. Understandably, therefore, I do not propose to respond in detail to the short passages that were read out to me. In general terms, as I hoped I had made clear earlier in the debate, the Government consider that the provisions of the Bill would comply with the convention in dealing not only with issues of personal privacy but also important principles such as the presumption of innocence, the privilege regarding self-incrimination, legal personal privilege and the protection of journalists' confidential sources.
As I understand it, Mr. Beloff s opinion indicates that, if this Bill passes in its present form, challenges before the European Court are inevitable. As I observed earlier, it would be for that court to decide whether or not there had been any breach of the convention. All I can do is to give the Committee an assurance that these issues have been looked at. Had they not been, mistakes might have been made which would have led to unfavourable decisions.
Moving on, I stress again that the experience gained from the use of the 1984 guidelines has been very useful in framing the draft code of practice which is available. I say again how useful it would be if noble Lords who had comments to make on that draft were minded to draw that fact to the Government's attention. The code will eventually have to come before this Chamber and we would rather hear your observations and criticisms sooner than later.
Having regard to the structure of Clause 89, the positive reason to which I invite the Committee to pay regard is that the officers who will be acting as authorised officers will be extremely senior. They will have been in the police or Customs service for many years; they will have had extensive training; and no doubt they will have passed various examinations and

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sat in front of selection boards. I suggest that they are uniquely qualified to deal with the organisational assessments which are an implicit part of subsection (3).
It is no criticism of circuit court judges or sheriffs to say that they have not had that practical experience. They are trained in other disciplines and have worked in the criminal justice system from a different perspective. The whole criminal justice system depends on people of different disciplines and different experience working together.
I recognise that Members of the Committee feel strongly about the issues which undoubtedly arise in this clause; but I hope that the Committee will be persuaded that the Government have got right the balance that has been struck in this part of the Bill. For that reason, I hope that it will be possible for the noble Lord, Lord Rodgers, to withdraw his amendment.
Lord Ackner: Before the noble and learned Lord sits down, I wonder whether he can help on one matter. He said that the Government decided that it was not appropriate to involve the judiciary and gave as his reason for the non-involvement of the judiciary that it would be perceived to be a threat to the impartiality of the judges.
Have the Government made any inquiries into the Commonwealth jurisdictions where the senior police officer makes his application in private to the particular member of the judiciary charged with considering the application to discover whether there has been any problem in relation to the perception of a threat to the impartiality of judges? If so, what has been the result of his inquiries?
Lord Mackay of Drumadoon: I cannot provide a detailed answer to the point raised by the noble and learned Lord at this juncture. I have certain information about the views that certain members of the judiciary may hold, but I would rather not say anything about them without being quite clear where they come from and on what basis, confidential or otherwise, they were passed. But I undertake to investigate the matter both in relation to the United Kingdom and further afield and I shall seek to satisfy the point that the noble and learned Lord raised.
However, I stress that, while there may be judicial warranting and other common law jurisdictions, it is perfectly possible for common law jurisdictions to go about things in different ways, seeking to achieve justice in the way they feel best and happiest with. It may be that while there is a lot to learn from other countries, one does not necessarily need to follow precisely the same route if, for other reasons, the view is taken that a different route might be preferable. That, I submit, is the situation that we are probably in in this case.
10.30 p.m.
Lord Rodgers of Quarry Bank: I say with great reluctance that I find the reply of the noble and learned Lord the Lord Advocate very disappointing and unconvincing, particularly in so far as he sought to deal with the question of impartiality, which has again just
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been raised by the noble and learned Lord, Lord Ackner. I agree that the debate has ranged very widely. But, as my noble friend Lord Lester made clear, these are moderate and workable proposals. I said in the course of my opening remarks—I share the view expressed by the noble Lord, Lord McIntosh of Haringey—that I reluctantly support statutory powers in this area.
My amendment was addressed simply to the question of judicial authorisation. As I understand it, though I must read the Official Report carefully, the Lord Advocate simply added to the argument on impartiality that we heard previously from the Minister two propositions which need to be examined. I hope I do not misrepresent him but at one stage he seemed to be implying that judicial authorisation might be more difficult to keep secret than an authorisation undertaken by a police officer.
He said also that it was extremely difficult for a circuit judge to make a decision on an operational matter. As far as I could judge from his remarks—they ranged very widely—those are the only two arguments which he brought forward to add to those we heard on Second Reading. They must be examined carefully because there has been a great deal of confusion in the debate and in the mind of the Lord Advocate in regard to the argument for powers of this kind and the much narrower question to which my amendments are addressed—that is, by whom those powers should be exercised.
For that reason we cannot put these matters to rest tonight and can expect a fuller and further debate during succeeding stages of the Bill. However, will the Lord Advocate address, if not by intervention now, later, the question raised by the noble and learned Lord, Lord Browne-Wilkinson, in relation to whether there had been discussion with the judiciary of the arguments put forward by Ministers to justify their choice of options? As I understood it, no such discussion had taken place. I shall be grateful if, perhaps by letter, the Lord Advocate will deal both with that point and a point raised at the end of our discussion by my noble friend Lord Lester about practice in the Commonwealth.
Apart from the disappointment at the reaction from the Government Benches I was disappointed beyond what I had already said by the response of the noble Lord, Lord McIntosh of Haringey. If we were not in Committee in your Lordship's Chamber, he might have used the phrase, "My hands are tied". I hope that before we next discuss this matter he will seek permission from his party's spokesman in another place, on the basis of the powerful arguments put forward today, to adopt a more liberal and generous attitude towards the substance of the amendment I placed before the Committee.
I ask of the Government Benches that there should be some response and that they should take time to think again or come forward with better arguments, and of the Opposition Benches a move in the direction of the case which has been made very strongly today, both from these Benches and from the Cross-Benches in your Lordship's Committee.
I am tempted, because I see a good assembly of Members present tonight, to seek the opinion of the Committee. But, in the hope that if we return to this

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matter on Report there may be a larger number who are disposed to agree with the powerful arguments put forward from these Benches and elsewhere, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 74 not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 75:
Page 33, line 12, leave out ("thinks") and insert ("reasonably believes").
The noble Lord said: In rising to move Amendment No. 75, I shall speak also to Amendments Nos. 76 to 78. These amendments, as I indicated when I spoke to the last amendment, seek, by restricting its application to those cases which are absolutely necessary, to strengthen the effectiveness of statutory authorisation being given to bugging. It will be clear that the more frequently bugging is used indiscriminately, the less likely it is to provide an effective remedy against serious crime. We are deeply concerned about the provisions in Clause 89 which indicate the circumstances in which an authorising officer can authorise telephone tapping or bugging.
The phrase used in Clause 89(3)(a) is that the authorising officer,
"thinks it necessary for the action specified to be taken on the ground that it is likely to be of substantial value in the prevention or detection of serious crime".
The phrase "thinks it necessary" is deeply defective because it provides no objective test at all. It could never be tested in the courts or by the commissioner as to whether it was reasonable or not to authorise bugging. It is simply a matter that the authorising officer thinks so. That applies in line 12 and also in line 15, where the words used are "is satisfied", which again is a phrase without any objective test. Our alternative phrase "reasonably believes" in both cases adds an objective test.
I turn to Amendment No. 76. The phrase used in the Bill is,
"that it is likely to be of substantial value in the prevention or detection of serious crime".
The phrase,
"likely to be of substantial value",
is very vague indeed. Surely the correct phrase is that it is "necessary for". That is what bugging is for. It is only to be used when it is necessary, as has been confirmed by Ministers and by everyone who has sought to justify these statutory powers.
Finally, Amendment No. 78 seeks to extend the phrase,
"cannot reasonably be achieved by other means",
by adding,
"and that the action specified is proportionate to the aim sought to be achieved".
That again is a phrase which is used in legislation and has been used for many years. It provides some kind of control—perhaps not a very strong kind of control—on
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the extent of action which might be taken in relation to property. Instead of just saying that the authorising officer may authorise,
"the taking of such action…as he may specify",
the amendment would restrict it to that action which is actually necessary for the purposes concerned. It stops the possibility of the legislation making lawful, for example, criminal damage or other interference with property.
We believe that to define these matters more closely is not to weaken but to strengthen the provisions of the clause. I commend the amendments to the Committee. I beg to move.
Lord Mackay of Drumadoon: I accept that the amendments are put forward in the hope that they will be attractive to the Government and that they will be perceived as being helpful. I hope that my response in rejecting them will not come across as being dismissive. I accept the spirit in which they are advanced.
When one looks at what is proposed, it is clear that they do not alter the position at all. The first and third of the amendments are, on one view, fairly semantic. One definition of "think" in the dictionary is "believe", and obviously the converse is true. While some mention is made by the noble Lord of an objective test, what the clause requires is that the authorising officer be satisfied. If that judgment is to be scrutinised by the commissioner, it is difficult to see how any less information would require to be available for the officer to be satisfied than for him to reasonably believe a certain view. Indeed, the whole structure of the clause requires authorising officers to proceed on a reasonable basis. If they fail to do so and complaints are made, the commissioner will undoubtedly intervene; equally, in the absence of any complaint, he will deal with such a matter in the reports he is required to make.
Probably the clearest reason for the choice of words used in the provisions to which the first and third amendments are directed is that the Government have sought to mirror the terms which are already used in existing legislation in the Interception of Communications Act 1985 and in the Intelligence Services Act 1994. One finds use of the terms "think" and "is satisfied".
It is always sensible, when one is seeking to achieve the same purpose in legislation, to use similar if not identical words to those that have been used in the past. If a change is made, then courts and lawyers begin to enter the playground that we were discussing earlier and try to argue that Parliament intended something different. That is the reason why the passages to which Amendments Nos. 75 and 77 are directed are in the form that they are.
Turning to Amendment No. 76, again I am not persuaded that the term,
"likely to be of substantial value in",
should be replaced by "necessary for". For a start, there is already a "necessary for" test in the first part of the subsection and any further repetition might be thought to be tautologous. We must also remember that these are primarily intelligence-gathering operations against

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sometimes elusive and certainly very difficult criminals to track down and to get evidence against. It would be very difficult for an authorising officer to be sure that the action he is authorising will ultimately lead to the prevention or detection of serious crime. What he can be satisfied of, however—and again this will be subject to scrutiny—is that the action is likely to be of substantial value in the investigation process in which he is engaged.
Finally, as regards Amendment No. 78, I believe that the Government have made it clear in the Bill that authorisation should only be given, and probably only sought, in cases involving the most serious of crimes and where action cannot reasonably be achieved by any other means. The code of practice to which I have already made reference, deals with the issue of what is proportional. Paragraph 2.2 states that,
"A person giving an authorisation should satisfy themselves that the degree of intrusion into the privacy of those affected by the surveillance is commensurate with the seriousness of the offence. This is especially the case where the subject of the surveillance might reasonably assume a high degree of privacy, for instance, in their houses".
I suggest that it is better for such guidance to be set out in the code, which is subject to scrutiny in Parliament, rather than in the primary legislation itself. In the light of experience, it would be far easier to bring forward a new code and have that approved than to embark on detailed amendment of primary legislation. Having acknowledged that I appreciate the spirit of the amendments which have been brought forward, I hope that the noble Lord will find it possible to withdraw them.
Lord McIntosh of Haringey: I am not convinced by the semantic parts of the Lord Advocate's argument. I believe that he has unreasonably failed to recognise the importance of the word "reasonably" as providing an objective test which "thinks" and "satisfied" do not provide because those words are in the mind of the authorising officer whereas "reasonably" is capable of being tested in the courts. Subsection (3)(b) uses the word "reasonably", which confirms my view that the amendments are not tautologous or unnecessary. However, I recognise the desirability in most circumstances of legislation being compatible with previous legislation. I recognise the force of the point that the noble and learned Lord the Lord Advocate makes about the wording of the Interception of Communications Act even though I prefer my wording to his. On that basis I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 76 to 78 not moved.]
10.45 p.m.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No.79:
Page 33, line 20, at end insert—
("( ) An authorising officer shall not authorise action under subsections (1) to (3) if the sole purpose of the action is to overhear speech transmitted by the public telephone or where an application may be made under the Interception of Communications Act 1985.").
The noble Lord said: In moving Amendment No. 79, I should like to speak also to Amendments Nos. 81, 91 and 94. In response to the previous amendment, the noble and learned Lord referred to the code of practice which was subject to parliamentary scrutiny. I acknowledge the courtesy of the noble Baroness, Lady Blatch, in seeing to it that we received a copy of the code of practice in time for us to table amendments, as we had requested. These four amendments quote the code of practice and seek to make it available for discussion and—if I convince the Government of it—for inclusion in the Bill.
Amendment No. 79 provides that overheard speech transmitted by the public telephone shall not be the sole purpose of action under this part of the Bill, because that is perfectly well covered by the Interception of Communications Act 1985. The code of practice rightly says that it should be dealt with under that Act rather than this Bill. I cannot see that that will change. It seems to me that it is a stable part of the provision which the Government propose and therefore it ought to be on the face of the Bill rather than in the code of practice.
Amendment No. 81 refers to the detail to be specified by the authorising officer when he approves an application for intrusive surveillance under Clause 89(2). It provides that the authorisation should include the names where known of those to be targeted, the property, the nature of the case and the intrusive surveillance involved and how the authorisation criteria have been met. That also comes from the code of practice. It is the Government's stated intention that that should be included in the operation of this part of the Bill. I suggest to the Government that these matters are also pretty stable and are not likely to be changed. They do not require the flexibility of the code of practice and can perfectly well be included on the face of the Bill.
Amendment No. 91 is concerned with Clause 91 of the Bill. It provides for the review of authorisation:
"The relevant authorising officer shall review each authorisation at intervals of not more than a month from the day on which the authorisation was given, to assess the need for the intrusive surveillance operation to continue".
That is also the intention of the Government. We are not breaking new ground by raising it here and now. It appears to be one of those aspects of the code of practice that is hardly likely to change, certainly once it has gained the authority of government. There is no good reason why it should not be included on the face of the Bill.
Finally, Amendment No.94 is a much more practical element in the code of practice. It provides for an authorisation record to be created giving the date when authorisation is given, the fact that further intrusive surveillance has occurred and the state of play as regards periodic renewals and the results of those renewals. It also provides for a central record to be kept. That is also the intention of the Government. It is not likely to change, and it should be on the face of the Bill. I beg to move Amendment No. 79.
Lord Mackay of Drumadoon: As the night wears on, I am not sure that there is a great deal between the noble Lord and myself. When one looks at the

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chronology of events that precede the coming into force of Part III, it is possible to prefer the view that it is better to deal with conditions in the code of practice rather than on the face of the Bill.
Clause 92(5) provides that the code is required to be brought into operation by means of a statutory instrument approved by a resolution of each House of Parliament.
So Parliament will have an opportunity to debate the code.
I repeat what I said a moment ago, that it is possible that in the light of experience the code may have to be altered in one form or another. For example, time limits within which authorisations need to be reviewed—and there has to be an assessment of the need for the operation to be continued—are matters which may need to be altered once the system is up and running.
On the last four amendments, the answer is that these matters are currently dealt with in the draft code. Subject to refinement, they will be dealt with in the code which will be laid before Parliament.
The short answer to Amendment No. 79 is to be found in Clause 89(3)(b). The authorising officer has to be satisfied that the action which is sought to be covered by the authorisation cannot reasonably be achieved by any other means. If the sole purpose of the authorisation were to overhear speech transmitted by a public telephone, application may be made under the Interception of Communications Act 1985. Then, as a matter of law, that condition could not be met. Although the Bill does not deal with the matter in the way that the noble Lord might wish, as a matter of law it is dealt with in Clause 89(3)(b). I hope that with that explanation the amendment will be withdrawn.
Lord McIntosh of Haringey: I accept what the noble and learned Lord the Lord Advocate says about Amendment No. 79. As to the other amendments, he says that it is possible to argue that they are better dealt with in the code of practice. I agree that it is possible. Everything is possible, but it is not probable. Surely it is better to have these matters considered and debated, even at this hour of night, in this Chamber than to have them treated en bloc, as a code of practice would have to be treated. A code of practice can be debated, but it cannot be debated in its parts, and it cannot be amended. It is much better to do it this way when the issues are as stable as I have suggested. However, in the light of the Lord Advocate's remarks on Amendment No. 79, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 80 to 82 not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 83:
Page 33, line 35, leave out ("or") and insert ("and").
The noble Lord said: The amendment addresses the issue of the definition of serious crime which is used in this part of the Bill. The issue is not new because the
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same definition of serious crime was used earlier this year in the Security Service Act. We proposed the same amendment then as we do now.
The issue is that the definition of serious crime is in two parts. First,
"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".
Secondly,
"the offence or one of the offences is 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 or three years or more".
Those two parts of the definition, joined, as they are, by the word "or" result in a definition of serious crime which defies common language. The example has been given on many occasions—most recently today by the noble and learned Lord, Lord Browne-Wilkinson—of a large number of persons in pursuit of a common purpose who might be, as he suggested, protesters against the Newbury by-pass, or as I suggested, in the past protesters against the poll tax. Indeed, I hope that almost any political objective can be pursued by a large number of persons in pursuit of a common purpose. Harold Wilson used to call them "a tightly knit group of politically motivated people". Unless it is linked with a definition of serious crime which includes the provision of a reasonable expectation of a sentence of imprisonment of three years or more, it clearly extends the definition of serious crime beyond common language and beyond common sense.
This amendment is as relevant now as it was when we moved it on the Security Service Bill and I commend it to the Committee. I beg to move.
Lord Mackay of Drumadoon: The arguments advanced by the noble Lord obviously come as no surprise to me because I am aware of the views which were expressed in your Lordships' House during the debates on the Security Service Bill. It is right that I should place on record why, in this Bill, the draftsman continues to refer to serious crime in the terms that have been used before. The Government intend that the police and Customs officers will deploy techniques which require interference with property involved with organised crime and organised criminals. There is no statutory definition of what is organised crime and the Home Affairs Select Committee in another place recommended that efforts should not be wasted in trying to create one. I know that is a view which is shared in many jurisdictions. One can argue for months if not years on the topic and all the time serious crime is proceeding.
The approach followed has been, without any apology, to adopt the definition of serious crime which has been used in the interception of the Communications Act of 1985, an Act of Parliament which has been in place for more than a decade. The experience of that Act is that the definition has, in practice, worked well. Warrants issued under that Act are subject to scrutiny by an independent commissioner and none of the three distinguished members of your Lordships' House, the

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noble and learned Lords, Lord Lloyd, Lord Nolan or Lord Bingham, has ever found cause to complain about the definition of serious crime contained in that Act.
It was for that reason that, when the Intelligence Services Act 1994 was amended by the Security Service Act 1996, the same approach was followed, as the same approach is urged on the Committee tonight. When the House debated the Second Reading, the noble and learned Lord, Lord Browne-Wilkinson, came up with the very interesting example of the Newbury by-pass protestors and of how they might be brought within the definition of the clause as it is currently framed. Rising to the challenge, my officials have sought to work out a crime which could be legitimately described as a serious crime but which would only fall within one of the two branches of subsection (5). I put this example forward to support the view that the general approach is correct.
Perhaps one may imagine a disgruntled employee who threatens to contaminate a product of his former employer. The motivation of such an employee need not involve any use of violence, need not result in any substantial financial gain, and need not be conducted in association with anybody else. The intention might be to give ample warning that the product had been contaminated with a view to all the potential products affected being destroyed. On any view, that would be regarded as a serious crime. It would constitute the offence of blackmail under Section 21 of the Theft Act of 1968, an offence which carries a maximum penalty of 14 years' imprisonment. As I understand it, that would fall within one branch but not the other. One cannot say how likely it is to occur, but it certainly cannot be excluded as a possibility. That carefully thought out example illustrates that the approach followed since 1985 is correct. On that basis, I invite the noble Lord to withdraw the amendment.
11 p.m.
Lord McIntosh of Haringey: I am not convinced by the example. The only way in which it is a serious crime is if the result might be serious, in the sense that a lot of people might suffer from the contamination. It might therefore be said that throwing oneself off a roof into the middle of a crowd is a serious crime on the basis that a number of people on the ground might be injured. I do not think that a serious crime can be defined by judging the worst possible outcome of that crime. Nor do I believe that the noble and learned Lord the Lord Advocate would seriously argue that. My example of the Newbury by-pass is an actual example, to which he did not attempt to respond.
I am not satisfied with this provision. I did not like it in the Interception of Communications Act. However, I recognise that it has been in force for a number of years. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 84:
Page 33, line 39, at end insert—
("(5A) Any information or property obtained or retained in whatsoever form under the powers conferred by this section shall be treated for destruction purposes as if it were a fingerprint or sample in accordance with section 64 of the Police and Criminal Evidence Act 1984.").
The noble Lord said: This amendment offers an additional protection which does no harm whatever to the fight against crime. It provides that Section 64 of the Police and Criminal Evidence Act, which deals with fingerprints and samples, can be applied here to information or property obtained or retained using the powers in that section. We are saying: let the Government be consistent. If under the Police and Criminal Evidence Act they would order the destruction of that information or property, then they should order its destruction in the same circumstances under this part of the Bill. I beg to move.
Lord Mackay of Drumadoon: This amendment, if allowed, would do some harm to the structure of the Bill as it is laid out and the intention for which these clauses are being introduced.
Section 64 of the 1984 Act deals with the destruction of fingerprints and other samples taken after an offence has been committed and taken in connection either with the investigation of that offence or the prosecution of somebody for the offence.
In the case of this Bill, the situation is different. There is no need for a particular offence to have been committed before an authorisation can be sought. It can be sought, as Clause 89(3)(a) makes clear, for the purposes of the prevention of crime as well as the detection of crime. Therefore one cannot apply the Section 64 procedure simply, as is suggested.
These clauses are designed to build up criminal intelligence recovered by intrusive surveillance on serious criminals. They do not commit one-off crimes and then retire happily to the countryside. They engage in this activity year in, year out. It would frustrate one of the primary intentions of this legislation if information recovered had to be destroyed after a short period of time.
I am sure that the noble Lord, Lord McIntosh, will recognise a difference between the prosecution of individual offences and intrusive surveillance directed at ongoing serious criminal activity which may run year after year. Given that explanation, I hope it will be possible for the noble Lord to withdraw the amendment.
Lord McIntosh of Haringey: I wonder whether the noble and learned Lord has adequately instructed himself on Section 64 of the Police and Criminal Evidence Act. We are not talking about destruction after some arbitrary period of time; we are talking about destruction after, for example, a case has resulted in acquittal. That is what Section 64 is about. It would not in any way damage the effectiveness of the information or property which is being obtained. I really wonder whether the noble and learned Lord the Lord Advocate ought not to read again his brief and the original

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legislation and see whether my interpretation is not closer to reality than his. In anticipation that he might do so, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 85 not moved.]
Clause 89 agreed to.
Clause 90 [Authorisations given in absence of authorising officer]:
Baroness Blatch Baroness Blatch moved Amendment No. 86:
Page 35, line 18, after ("or") insert ("under or by virtue of').
On Question, amendment agreed to.
Clause 90, as amended, agreed to.
Clause 91 [Authorisations: procedure and duration etc.]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 87:
Page 35, line 41, leave out ("fifteen days") and insert ("seventy-two hours").
The noble Lord said: I rise to move Amendment No. 87 and to speak also to Amendments 88, 89 and 90. All of these amendments are concerned with the renewal of authorisation.
The Bill quite properly sets time limits for the renewal procedures under Clause 91. I suggest to the noble and learned Lord the Lord Advocate that these time limits are no more and no less permanent than the time limits in the code of practice which he suggests might require flexibility. Experience might show that these time limits are at least as vulnerable to change as the ones he defended in the code of practice earlier. However, I am not proposing that they should be taken out of the Bill and put into the code of practice. I am proposing that they should be tighter than they are at present.
It is proposed that an oral authorisation—in other words, an emergency authorisation given under Clause 91—should expire 72 hours after it is given, rather than after 15 days as is proposed in the Bill. If the authorities cannot get their act together within 72 hours to obtain a proper authorisation, then there is something very wrong with management.
We suggest as an additional criterion that the authorisation should expire at the end of the period for which it was given. That is to take account of the possibility that the period for which it was given should be shorter than the period of six months provided in subsection (2)(b).
In subsection (2)(b) we suggest that expiry should be three months, beginning on the day on which it was given, rather than the six months proposed. Again, an effective management would ensure that authorisations were given for a period in which they are likely to be used and useful, rather than having a number of authorisations in force, dragging on and clogging up the system, which would otherwise be the case.
Finally, Amendment No. 90 suggests that in a case when it is necessary for a renewal, the renewal by a person other than the original applicant should be for a
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period not exceeding three months rather than the period of six months proposed in subsection (3) which we would take out of the Bill. Again, these are not damaging amendments; they are designed to ensure that there is effective management.
I know that what I am saying seems to be very funny to the Government Front Bench. There is a constant state of laughter about all of this, but I think it is serious.
We are trying to increase effectiveness by removing the unnecessarily lax conditions under which authorisation can originally be achieved and renewed. I beg to move.
Lord Mackay of Drumadoon: I commend the noble Lord upon his ingenuity in deploying my own arguments against me. I have to say that we believe that the period stipulated in the amendments is far too short. Perhaps I should also explain that the slight hilarity just witnessed on the Government Front Bench was due to the fact that I was offered a glass of lemonade. I said that I would accept it provided that it was pure lemonade and did not have anything stronger in it.
Lord McIntosh of Haringey: You could not afford the tax!
Lord Mackay of Drumadoon: I am happy to hear that the tax on my favourite drink has gone down; but perhaps we should discuss that later.
At present, property warrants authorised by the Secretary of State under the Intelligence Services Act 1994 and the Security Service Act 1989 last for six months. We would not wish to disadvantage the police and Customs by restricting authorisations to half that period. Unlike the Interception of Communications legislation, where a warrant can be activated almost instantly, it may in some instances take many weeks to set up an intrusive surveillance operation and to gain access to the target's property. While that may not apply in every instance, it will certainly apply in some. Once the operation has been completed, it may take many weeks more for an intrusive surveillance device to be retrieved. For those very sound and practical reasons, we must give the law enforcement agencies a reasonable period within which to complete their operations.
It is important to remember that the provisions included in the Bill provide for the authorising officer to cancel an authorisation as soon as the intrusive surveillance is no longer necessary. The code of practice requires the authorising officer to carry out regular reviews, which should be at no greater interval than one month. We consider that this is the most effective and efficient way of keeping authorisations to the minimum period necessary at the same time as avoiding unnecessary bureaucracy and circumventing the practical problems which such surveillance operations will sometimes encounter.
We accept that the period of authorisation given orally and, in urgent cases, in the absence of the senior officer is greater than the period for dealing with urgent warrants under the two Acts. However, the circumstances of the authorising officers are different. It

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is always possible to obtain a warrant from a Secretary of State, whereas there is only one chief officer of each force. The nature of a chief officer's role often takes him away from his force, and chief officers, like the rest of us, are entitled to holidays or, indeed, may be absent for valid business reasons. We must seek to avoid the situation where a warrant is urgently needed in the chief officer's absence but the person permitted to authorise warrants in his absence can do so only for a very limited period. That is why we have stipulated that emergency warrants of this kind should run for 15 days.
We have not specified what rank of officer should make the application for authorisation (as opposed to the authorising officer, in regard to whom, as Members of the Committee will know, there are very strict criteria). We therefore see no reason why we should specify the rank of any officer making an application for renewal. The important aspect is to ensure that the information provided is sufficient to justify renewal by the authorising officer. All applications, whether original ones or ones for renewal must meet the provisions of Clause 89, and this does not need to be repeated "ad longam" in Clause 91. I hope again, therefore, that the noble Lord will feel able to withdraw the amendment.
Lord McIntosh of Haringey: Perhaps I may clear away one possible misunderstanding. Amendment No. 90 does not specify the rank of the authorising officer. It says that if it is necessary to renew the application and the officer who applied for the authorisation is not available, then the officer who replaces him and applies for the renewal should not be of a lower rank than the original officer. We do not believe that an application for renewal ought simply to be left to a junior person, given the fact that the chief officer is almost certainly going to authorise a renewal unless there is very good reason to the contrary.
I should be more convinced by the arguments of the noble and learned Lord the Lord Advocate about the periods necessary for the application to be in force, and for renewal, if I did not know that in other jurisdictions where similar questions arise it is possible to have shorter periods. For example, in the Netherlands, under Article 125 of their penal code the period is four weeks. In this legislation it is six months. In the United States the period is 30 days. We are being quite modest in suggesting a reduction from six to three months. Clearly these jurisdictions have not suffered the problems which the noble and learned Lord the Lord Advocate suggests would be the result.
A system of authorisation and of intrusive surveillance which restricts itself to those cases which are really necessary is more likely to be effective in the pursuit of serious crime than one which is relatively indiscriminate and takes up an excessive amount of the time of National Crime Squad officers who have many other things to do and for whom intrusive surveillance is only one of the weapons available to them in the fight against serious crime.
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The amendments genuinely seek to improve the efficacy of the fight against serious crime. It is disappointing to me that time after time the noble and learned Lord the Lord Advocate is unable to accept the reasoning underlying our approach to this part of the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
11.15 p.m.
[Amendments Nos. 88 to 92 not moved.]
Clause 91 agreed to.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 93:
After Clause 91, insert the following new clause—
REPORT TO COMMISSIONFR
(". Within thirty days after an authorisation under section 89 or section 90 of this Act, or each extension thereof authorised under section 91(3) of this Act, the issuing officer shall report to the Commissioner established under section 93 of this Act—

(a) the fact that an authorisation or extension was applied for;

(b) the kind of authorisation or extension applied for;

(c) the fact that the authorisation was authorised as applied for or was modified;

(d) the period of time for which the authorisation was given, and the number and duration of any extensions of the authorisation;

(e) the offence specified in the authorisation or application, or extension of the authorisation; and

(f) the nature of the facilities from which, or the place where, the action authorised was to be taken.").

The noble Lord said: Amendment No. 93 stands on its own. It relates to the provisions in Clauses 93 to 95 for the appointment of a commissioner. It is appropriate to be inserted after Clause 91 because the provisions deal with the authorisation and extension of applications for intrusive surveillance.
The amendment provides that if the commissioner is to fulfil his role effectively and to produce accurate annual reports to enable Parliament to review and assess the effectiveness of the actions authorised under this part of the Bill he should have available to him the necessary facts. The new clause provides for the necessary facts. It refers to,
"the fact that an authorisation or extension was applied for; the kind of authorisation or extension applied for",
and so on. I shall not read out the amendment. The point is not that the commissioner will necessarily be concerned with the detail of every single amendment but that this is raw material for a statistical analysis of the actual use not just of authorisations but of actual intrusive surveillance. That is the important point about the amendment.
I am sorry to record that the Liberal Democrat Benches are empty at this time when considering this most important Bill. However, in his response to the noble Lord, Lord Rodgers, the noble and learned Lord the Lord Advocate prayed in aid the existence of the commissioner and the provisions for the commissioner in Clauses 93 to 95. He is right. It is important that there should be a commissioner. Many of the provisions for the commissioner are right too. But the

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commissioner will be ineffective unless he has the information necessary for him to do his job. Our proposed new clause provides the necessary information for the commissioner. I beg to move.
Lord Mackay of Drumadoon: I think the short answer to this amendment is to be found in subsection (4) of Clause 95, which provides that:
"A person shall disclose or give to the Commissioner such documents or information as he may require for the purpose of enabling him to discharge his functions."
The approach being followed here is to leave it to the commissioner, who, I would remind your Lordships, will currently hold a high judicial office, to work out for himself what procedure he wishes to follow. It may be that he is satisfied, once he takes up office, that he wishes to have a report within 30 days or it may be that he thinks that is too long a period or too short a period. I suggest to the Committee that it would possibly be unwieldy or unnecessarily bureaucratic for the Committee to impose the requirement on the authorising officers and on the commissioner to take delivery of reports at that stage. He is given an unfettered power to ask for the information that he wants. I would suggest that, when that power has been given to a man with the qualifications and experience of a High Court judge, that should be sufficient to satisfy your Lordships that the amendment is unnecessary. In a gesture of goodwill, can I say that, if the noble Lord keeps pressing on, he may come to an amendment which I am happy to accept.
Lord McIntosh of Haringey: I do not know whether that is a stick or a carrot. The Lord Advocate of course is a distinguished lawyer and I am the only non-lawyer taking part in this debate on this part of the Bill, although my noble friend Lady Hilton will be taking over from me in a minute. Can I give him my experience as a survey researcher? If you are going to have effective statistics for analysis of the kind that will be necessary for the proper discharge of the commissioner's responsibilities, the only way in which you will secure that those statistics are properly collected is if you specify what is to be collected from the outset and make that very clear that that is the responsibility. If the commissioner, after the event, says to authorising officers, "Please give me details of all the authorisations you have given and the action taken upon them over the last 12 months", that is a recipe both for wasting the officers' time and for ensuring that the data available are inadequate, based on memory, liable to error and unsatisfactory for the purposes which the commissioner intends to fulfil.
I do assure the noble and learned Lord that, unless you plan it in advance, the commissioner will simply not get the information he wants and the most effective and economical way is to specify the information in advance. That is the thinking behind all survey work in the public sector from the census to the general household survey and behind all the work of the Research and Statistics Department of the Home Office. All those involved will tell the noble and learned Lord, the Lord Advocate, if he asks them, "If you want to collect statistics you must decide what you want and
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specify it from the beginning." As one professional to another, I do commend the noble and learned Lord to think carefully about this amendment before rejecting it finally, but, in the knowledge that he will do so honestly, I beg leave to withdraw the amendment at this stage.
Amendment, by leave, withdrawn.
[Amendment No. 94 not moved.]
Clause 92 [Code of practice]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 95:
Page 36, line 19, leave out ("may") and insert ("shall").
The noble Lord said: I put this amendment down before the Government put down Amendment No. 137 with the intention of ensuring that the Government would introduce a code of practice. They have introduced a draft code of practice but, with Amendment No. 137, they have gone further and recognised, and responded to, the concerns of the Delegated Powers Scrutiny Committee.
The Committee will recall that the Delegated Powers Scrutiny Committee said that it was not enough to say that there should be a higher level of parliamentary scrutiny of the code of practice because, if it were turned down, the result would be worse in that there would be no code of practice at all. The committee said that this part of the Bill should not be implemented until the code of practice had been agreed. I am happy to see that in Amendment No. 137, which is grouped with this amendment, the Government have recognised that point and conceded the fact that the code of practice will be approved before this part of the Bill is brought into force. I do not know whether that means that the noble and learned Lord the Lord Advocate proposes to accept my Amendment No. 95 and, frankly, I do not care. The important thing is Amendment No. 137, and I am grateful for that. I beg to move.
Lord Mackay of Drumadoon: I must begin by giving an unqualified apology to the noble Lord. I had thought this was the amendment that I was in a position to accept, but I am afraid that the first revision of my instructions is in slightly different terms.
We shall come to Amendment No. 137 on the second day of the Committee.
Lord McIntosh of Haringey: You are dealing with it now.
Lord Mackay of Drumadoon: I am sorry, I thought that technically it would not be moved until the second day. Perhaps we are both right: we are talking about it now and it will be moved in due course.
Amendment No. 137 should take care of any concern that any part of the Committee may have about the code of practice. It will be in force, having been approved by a resolution of both Houses, before this part of the Bill comes into force. I am advised that that makes Clause 92 unnecessary and that it may also be technically deficient. The rest of the clause as drafted is on the basis of the Secretary of State having a discretion

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with regard to the code of practice. Subsections (2) and (4) would need to be amended to bring them into line with subsection (1). That is a technical objection to the noble Lord's amendment, but I hope he will be satisfied by Amendment No. 137 and will find it unnecessary to bring this matter back.
Lord McIntosh of Haringey: The implication of what the noble and learned Lord the Lord Advocate is saying is not that I should withdraw my Amendment No. 95, but that he and I should sit down together afterwards and draft the consequential amendments to subsections (2) and (4) of this clause. Does he agree to that, so that we can include Amendment No. 95 in subsequent amendments?
Lord Mackay of Drumadoon: The second revision of my instructions makes it possible, provided it is over something stronger than a glass of lemonade!
Lord McIntosh of Haringey: Does that mean that the noble and learned Lord the Lord Advocate is prepared to agree to it now on the basis that I will gladly support the consequential amendments?
Lord Mackay of Drumadoon: No. What I would agree to now is to pay for the refreshments. I cannot, I regret to say, agree to the amendment.
Lord McIntosh of Haringey: It is now my understanding that we shall get this amendment and the consequential amendments at the next stage. On that basis, I beg leave to withdraw Amendment No. 95.
Amendment, by leave, withdrawn.
Clause 92 agreed to.
Clause 93 agreed to.
Clause 94 [Principal functions of Commissioner]:
Baroness Hilton of Eggardon Baroness Hilton of Eggardon moved Amendment No. 96:
Page 37, line 34, at end insert—
("(IA) The powers of the Commissioner to investigate a complaint shall not prevent a complainant from making a complaint under Part IX of the Police and Criminal Evidence Act 1984.").
The noble Baroness said: We now come to a series of amendments which deal with the role of the commissioner and the possible inadequacies of his role. This relates to the earlier discussion we had at some length about the applications for warrants. My preferred solution is to deal with things if they go wrong rather than to change the provisions in the Act about how one applies for warrants in the first place. Over the years police officers applying for warrants have made mistakes. Some of them have been honest mistakes. They have broken into the wrong people's houses or they have done a series of other things which clearly were undesirable. There may also be dishonest police officers applying for warrants.
The role of the commissioner is such that he looks purely at the administrative procedures, as within a judicial review, and says whether they are right or wrong. As I understand it, he has no role to investigate complaints made by the public where the administrative
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procedures have been correct. Therefore, this amendment seeks to ensure that a member of the public can still have recourse to the Police and Criminal Evidence Act and can make a complaint about having his house entered and electronic bugging devices placed in it incorrectly. He also has the normal recourse to the police complaints system and is not bound by the very limited role of the commissioner, as provided for under this Bill. I beg to move.
11.30 p.m.
Lord Mackay of Drumadoon: There is nothing in the provisions of Part III of the Bill which would restrict or limit the present power and functions of the Police Complaints Authority to carry out investigations in response to a complainant making a complaint under Part IX of the 1984 Act.
The commissioner's role will be to review the authorisations given under the provisions of Part III of the Bill and to investigate complaints that authorisations had been given improperly. He will be concerned with the operational decisions of the authorising officers. The Police Complaints Authority, on the other hand, does not investigate complaints about operational decisions. It is concerned with the behaviour or activities of police officers who may have acted in a rude manner or beyond the authority given to them by senior officers. On very rare occasions they may have acted against the criminal law.
If, in the course of his investigation of a complaint, the commissioner finds that there has been intrusive surveillance carried out without the authorisation of an officer, or that, for example, unnecessary force or damage has been caused, or indeed that criminal activity has taken place at the hand of police officers, it would remain a matter for the chief constable to investigate under the normal complaints procedure. That would involve the Police Complaints Authority if necessary and ultimately, in a very rare case, possibly the Crown Prosecution Service as well.
There is nothing in the Bill that would prevent the Police Complaints Authority procedures being invoked. With that assurance, I hope that it will be possible for this amendment to be withdrawn.
Baroness Hilton of Eggardon: I am greatly reassured by what has just been said, although my understanding was that the commissioner's role was purely to apply the principles of a judicial review. When we come to Amendment No. 98 I shall address that point. In that case it sounds as though the actions of police officers when applying for warrants can be investigated in the normal way and that this Bill does not preclude that. On that basis, I withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hilton of Eggardon Baroness Hilton of Eggardon moved Amendment No. 97:
Page 37, line 42, leave out subsection (4).
The noble Baroness said: It would appear from what has just been said about the previous amendment that the commissioner's role is purely to investigate

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administrative matters. We feel that that is unsatisfactory. If he makes a decision on what on the surface may appear to be an administrative malfunction, our view is that it should be questioned in a court. For the statute to exclude the court's jurisdiction quite specifically in this way is, I think, unprecedented.
Similar exclusions have been made previously in relation to the security services, but surely this is not appropriate in relation to the investigation of crime. It is not suggested that issues relating to state security are being affected in relation to this Bill. Therefore, it seems quite wrong that the commissioner's decisions could not be questioned in a court. Therefore, I commend the amendment to the Committee.
Lord Mackay of Drumadoon: As the noble Baroness recognises, this amendment would allow the decisions of the commissioner to be questioned on appeal in open court and would quickly undermine the whole purpose and benefit of certain intrusive surveillance operations. Criminals would seek to exploit the provision to extract information about the nature of the operations directed against them, the equipment used and the techniques officers may deploy. Once that information became widely known—one can imagine the media taking an interest in such hearings—the value of the techniques would quickly diminish as criminals would take measures to avoid being trapped. One of the problems we always face in dealing with serious crime is that in many instances the criminals are one step ahead of law enforcement agencies.
It is unusual but not unique for a commissioner to act in a manner which would not be subject to appeal to a court. But that concern, if it be a concern, is met by the fact that the commissioner will he someone who is a member of the senior judiciary. I suggest that in those circumstances we can be sure without qualification that the commissioner can be trusted to act strictly in accordance with the law. The system has worked well with other interception and intelligence agency commissioners. It would be slightly unusual to have the activities of a commissioner of that senior rank open to review by another judge of similar rank. Such review would inevitably involve further publicity and destroy the element of secrecy which must apply to virtually all intrusive surveillance operations, not only of what actually happened but the fact that they occurred in the first place. Again, I hope it will be possible for the amendment to he withdrawn.
Baroness Hilton of Eggardon: My concern is not the protection of criminals; it is the protection of innocent people who have their houses intruded upon and bugs planted in them. In relation to surveillance devices, one can purchase them at Heathrow duty free shops. A vast range of surveillance and eavesdropping devices are available to the public. The idea that sophisticated criminals do not know about modern technology in this field is a rather naïve assumption that I have met with in police officers before now. Sophisticated criminals are inevitably up to date on these matters.
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I do not feel that it is satisfactory that the commissioner's decisions cannot be questioned and that other systems are assumed to have worked perfectly. No complaint has ever been upheld in relation to security services by the system appointed to investigate complaints, and that is not a satisfactory situation. It does not imply that no complaints have been justified; it merely implies that someone in the commissioner's position becomes part of the system.
I feel that the commissioner's decision should be subject to some external form of appeal. I shall return to this matter at Report but, in the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 94 agreed to.
Schedule 7 [Investigation of Complaints by Commissioner etc.]:
Baroness Hilton of Eggardon Baroness Hilton of Eggardon moved Amendment No. 98:
Page 67, line 15, leave out ("applying the principles applied by a court on an application for judicial review").
The noble Baroness said: I have already covered most of the points relating to the commissioner. Our feeling is that his role is far too narrow. Merely to review the administrative procedures as within a judicial review is insufficient and he should have a wider role. He should be able to review the motivation and malpractices that can go on when applying for warrants in these delicate situations. I beg to move.
Lord Mackay of Drumadoon: I regret that I do not fully understand what the amendment seeks to achieve. The amendment to Clause 94 seeks to allow the decisions of the commissioner to be subject to appeal or liable to be questioned in court. Yet in Amendment No. 98 the wish is to prevent the commissioner from applying the very principles that would have applied—
Baroness Hilton of Eggardon: The amendment seeks to remove the restriction on the commissioner merely to behave as though he was conducting a judicial review so that his role could be wider than purely looking at the administrative procedures. It follows the same line; that we feel the commissioner should be strengthened, that one should be able to appeal against his decisions and so on. In this instance, it is an attempt to widen his role beyond that of purely looking at the administrative arrangements for applying for warrants.
Lord Mackay of Drumadoon: As I understand the principles of judicial review, when there has been any suggestion of acting improperly, without any legal foundation for any ulterior motive which was not justified, that would be caught fairly and squarely by judicial review. I confess some difficulty in deciding what a wider power would involve. Indeed, if one takes out the reference to judicial review, one might have the impression that the commissioner would not approach it as a lawyer would but on some administrative basis.

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The fault may be entirely mine. Certainly, as presently advised, I do not find it possible to accept the amendment. However, if the noble Baroness wishes to discuss it with me or to write to me more fully about her concern, we can certainly look at it again.
Baroness Hilton of Eggardon: I intend to withdraw the amendment. My understanding is that a complaint is upheld on judicial review only where the decision is so unreasonable as to have been perverse. Those are the only circumstances in which a complaint is upheld. All the lower levels of administrative inefficiency, malpractice, mistake or whatever would not be upheld. I shall certainly withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hilton of Eggardon Baroness Hilton of Eggardon moved Amendment No. 99:
Page 67, line 25, leave out ("not give any") and insert (", provided that to do so would not prejudice the prevention or detection of crime, give his").
The noble Baroness said: I continue to pursue the same theme. The role of the commissioner, as laid down in the Act, is extremely narrow. The amendment seeks to require the commissioner to give reasons for the occasions on which he has not upheld a particular complaint rather than having it specifically excluded by the Act. This has taken clauses which have been justified in relation to the Security Service on grounds of national security but I think we are treading on extremely dangerous ground when we extend beyond state security into the ordinary field of crime such a requirement that the commissioner does not have to provide a reason for his or her decisions. I beg to move.
Lord Mackay of Drumadoon: Once again the draftsman has relied on parallels with the provisions contained in other Acts where there is a commissioner. Whether one is dealing with them as questions of national security, the prevention of terrorism or so forth, they all, in the minds of many members of the public, and indeed in the minds of many Members of your Lordships' House, could be described as being very serious criminal activities.
I do not see any reason why the role of the surveillance commissioner under this statutory scheme should be any different from those in the other schemes where a commissioner has been appointed. It would be extremely difficult for the commissioner to give reasons for his determination to a complainant without at the same time revealing details of the activities of the police, and in particular which officer may or may not have been involved.
It may be that criminals have a considerable amount of knowledge about surveillance devices, but they may not have similar knowledge of the personnel who have been involved in seeking the applications or granting them. To reveal such information may be prejudicial to the activities of the particular force concerned. It would also tend to encourage unfounded complaints by criminals merely seeking to test the water to see what reasons will be given.
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In this field one has a right to rely on the integrity of the commissioner. He is going to be selected from the very senior judiciary. It may be that a measure of trust has to be placed in him, but a similar measure of trust has been placed in commissioners who have served under other legislation. So far as I am aware, their activities have gone without any criticism whatsoever.
11.45 p.m.
Baroness Hilton of Eggardon: As I have said, the commissioners who have served under other legislation have all been related to the security services. The fact that the public—and, regrettably, some Members of this House—cannot distinguish between crime and matters of state security does not bear on this particular amendment. There are quite clearly different principles involved in giving up aspects of one's liberty in relation to state security and state secrets, and giving up aspects of one's liberty in relation to matters of crime. I am disappointed that that distinction is not clear to the Bench opposite.
The fact that the commissioner may well be a distinguished judge does not absolve him from giving a reason for decisions. He is well used to giving reasons for decisions. It is done every day of the week in this House as well as in the courts of this land. It seems only reasonable that reasons can be given. It does not mean that individuals or details of particular operations have to be disclosed. If someone has complained to the commissioner it seems only reasonable that he should give reasons for dismissing that complaint. I do not see that that will jeopardise the practical pursuit of crime. However, at this late hour I shall withdraw the amendment and come back to it at Report stage.
Amendment, by leave, withdrawn.
Schedule 7 agreed to.
Clause 95 agreed to.
Baroness Hilton of Eggardon Baroness Hilton of Eggardon moved Amendment No. 100:
After Clause 95, insert the following new clause—
ARRANGEMENTS FOR DISCLOSURE
(".—(1) Where an action pursuant to sections 89 or 90 is authorised, the authorising officer shall, unless such arrangements have already been made, make such arrangements as he considers necessary for the purpose of securing that the requirements of subsection (2) below are satisfied in relation to the material obtained.
(2) The requirements of this subsection are satisfied in relation to any material obtained if each of the following, namely

(a) the extent to which the material is disclosed;

(b) the number of persons to whom any of the material is disclosed;

(c) the extent to which the material is copied; and

(d) the number of copies made of any material

is limited to the minimum that is necessary as mentioned in section 89(3) above.").
The noble Baroness said: This is a rather different amendment to the ones that we have been dealing with in relation to the commissioner. The intention of this amendment is to insert a new Clause 95A, which will

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ensure that material obtained through actions authorised under warrant should be retained no longer and disclosed to no more people than absolutely necessary.
Again, my concern is to protect the innocent. We keep talking about criminals and what they may do with information. This is a question of limiting the number of copies; the extent to which material is disclosed and the number of people to whom any such material is disclosed, and so on. I would have thought that that would appeal in view of the fact that we wish to keep these operations as secret as possible. In relation to some of the sensitive material that may be acquired by having bugs in people's houses, that is only right and proper. One can imagine the value of selling some of this material to the popular press, for example, about people's private lives and so on.
Therefore, this amendment seeks to protect the privacy of people's lives within their homes so far as possible. In the Interception of Communications Act 1985 there is a similar section which relates to the retention of material obtained through interceptions. It seems only appropriate that it should relate to material obtained by electronic means within people's houses. It is also necessary to ensure compliance with our treaty obligations under the Council of Europe recommendation on data protection, which requires that such data will be retained for only such time as it is required and to the extent that it is necessary for the detection and prevention of crime. This may well relate to material obtained from people who are wholly innocent of any crime, not simply material obtained from the homes of criminals. I beg to move.
Lord Mackay of Drumadoon: I fully accept that this amendment is based on a similar provision to be found in Section 6 of the 1985 Act. However, I suggest that there is a fundamental difference between the provisions of this Bill and the provisions of the Interception of Communications Act 1985. Unlike the provisions of the latter Act, there is no statutory bar in this Bill on the evidential use of surveillance material in court proceedings, nor is there any prohibition on its disclosure in accordance with the provisions of the recently enacted Criminal Procedure and Investigations Act 1996. This is an important factor to be borne in mind. It means that if material obtained by the police may be relevant to a criminal investigation it must be retained and made available to the prosecutor who will consider it for disclosure to the accused. That means that it would be wrong to place in the hands of an authorising officer a decision which may give rise to an argument on the part of an accused or a defendant that his rights at trial have been prejudiced.
Of course, in other instances the product of the surveillance will not be considered for evidential use but will be used purely for intelligence purposes. As I have indicated earlier this evening, those intelligence purposes may be relevant to a course of criminal activity extending over many months and years. The very nature and sensitivity of the material recovered, and the techniques used to acquire it, combine to ensure that police officers tend to keep its circulation as restricted
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as possible. It is hardly in their interests to circulate the material any wider than necessary. The results would jeopardise not only the particular operation in which they are involved but other operations that may be linked in one way or another to it.
The Government believe that the internal discipline of the police forces and Customs officers who recover the material is the correct way to protect the innocent individual who may be mentioned in passing in the course of intrusive surveillance operations.
I believe that the points that I have outlined combine to remove the need for inclusion in this Bill of a statutory provision similar to that found in the 1985 Act. I hope that with that explanation the noble Baroness will feel able to withdraw her amendment.
Baroness Hilton of Eggardon: The sotto voce comment of the Chief Whip reaches my ears! Given the hour, I will read carefully the reply that has been given. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 96 agreed to.
Clause 97 agreed to.
Schedule 8 agreed to.
Clause 98 agreed to.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 101:
After Clause 98, insert the following new clause—
ARRANGEMENTS FOR CONSULTATION
(". The Organisation shall make arrangements for obtaining the views concerning the Organisation of—

(a) persons whom it considers represent the interests of chief officers of police of police forces in England and Wales, and

(b) persons whom it considers represent the interests of police authorities for areas in England and Wales.").

The noble Lord said: We are now dealing, rather briefly and rather late, with Part IV of the Bill which is concerned with the police information technology organisation. I am not sure that it was referred to on Second Reading, although I am sure that the Minister's briefing referred to it, and my noble friend Lady Hilton reminds me that she too referred to it, with her own knowledge of the subject. This part of the Bill starts with the statement:
"There shall be a body corporate to be known as the Police Information Technology Organisation".
There is of course a police information technology organisation. It is not a body corporate at the moment. It exists and it has a governing body which contains representatives of the police authority associations and ACPO.
What we propose with the amendment is that although there is no reference to them in the clauses which make up Part IV, there should be an obligation on the organisation to obtain the views of the chief officers of police and those representing the interests of police authorities concerning the organisation. Principally it is meant to cover the organisation's

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budget. It is funded partly by the Home Office Vote and partly by charging either directly, or in future under the PFI mechanism. Given the growth of information technology, we may well expect that PITO's expenditure will increase considerably. In so far as that money is well spent, then clearly such an increase in expenditure is desirable.
Since there is already a tripartite involvement in PITO this modest amendment simply allows for the possibility of consultation with the other partners in the tripartite organisation. I beg to move.
Baroness Blatch: To import the provisions in Parts I and II into Part IV is to overlook the fact that arrangements for PITO are different. That said, I can assure the Committee that PITO will have arrangements in place to consult both chief officers and police authorities. Indeed, our whole purpose in reforming the way police information technology services are provided is to place the strategic management of these services onto a proper tripartite footing.
Both the chief officer and police authority associations will be represented on PITO's executive board. As such, I would fully expect the chief officer and police authority members of PITO to bring the views of their associations to the deliberations of the board.
Furthermore, it is important to recognise that PITO does not operate in a vacuum. It prides itself on being a customer-focused organisation. All its main projects and services are guided by both steering and user committees on which there is tripartite representation.
Finally, tripartite consultation is also built into the arrangements for determining PITO's budget. I have previously explained that the arrangements for determining the levy for NCIS and the National Crime Squad, include consultation within a tripartite group established for this purpose. That same group will also consider the budget for PITO in the context of the proposed overall spending on the police and advise the Home Secretary on relative priorities.
In conclusion, PITO is founded on the tripartite principle, it will consult widely the chief officer and police authority representatives in much of what it does. In addition, the Home Secretary will consult the chief officer and police authority associations when considering the level of PITO's funding.
I see no need for this new clause and with that I hope helpful reply, I hope the noble Lord will feel able not to press the amendment.
Lord McIntosh of Haringey: The Minister has given all of the assurances for which I had hoped. The only thing I would say is that in contrast with Parts I and II, Part IV is notably terse. None of the things that she said about the governing body, consultation or the budget is contained on the face of the Bill. There is no provision for regulations to provide for them. The only possible clue to what the Minister has now said is found in Clause 98 which provides:
"The Organisation shall comply with any general or specific directions given in writing by the Secretary of State".
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However, the Minister has said them. They are on the record. They cannot be overturned without some embarrassment. I am grateful for that. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 102:
After Clause 98, insert the following new clause—
CLOSED-CIRCUIT TELEVISION BY LOCAL AUTHORITIES: CODE OF PRACTICE ON THE USE OF INFORMATION TECHNOLOGY
(".—(1) The Secretary of State shall, within two years of the coming into force of this Part, issue a code of practice relating to the information technology involving the use of any apparatus which is subject to the provisions of section 163 of the Criminal Justice and Public Order Act 1994.

(2) The Secretary of State may from time to time revise the whole or part of any code of practice issued under this section.

(3) The Secretary of State shall lay before Parliament a copy of any code of practice and of any revision of a code of practice issued by him under this section.").

The noble Lord said: Amendment No. 102 is something of a tidying up amendment. The Minister will know, even though it is not perhaps a matter of wide knowledge, that in Section 163 of the Criminal Justice and Public Order Act 1994 provision was made for local authorities to provide closed-circuit television in their areas in order to promote the prevention of crime or the welfare of the victims of crime. Local authorities in many parts of the country have enthusiastically taken up these powers, and the Minister will agree that many of these experiments in the use of closed-circuit television have been very productive. They have led to convictions, to identification of criminals and have provided not just actual protection for victims but a feeling of security among potential victims—for example, in deserted town centre streets or in shopping centres, particularly in the evening.
The local government information unit has drawn up a code of practice for the operation of closed-circuit television by local authorities. It looks to me, having no more than glanced through it, like a very comprehensive code of practice; but it is only a model code of practice which can only be recommended to local authorities.
What we are suggesting in this amendment is that, since the powers to use CCTV were created under the 1994 Act, and since they involve information technology, we should take advantage of this part of the Bill which is concerned with information technology to regularise the codes of practice. It is for the benefit of local authorities if they can be certain that they are not operating in a vacuum, and that the codes of practice they adopt are best practice—no more than that, and are not enforced regulations laid down by the Secretary of State—derived from experience in all parts of the country. I hope that even if the wording may be defective, the spirit of this amendment will commend itself to the Government. I beg to move.
Baroness Blatch: I have no difficult in saying we are with the spirit of the amendment. The link with PITO, I have to say, is ingenious, but somewhat artificial. PITO is concerned with the provision of computer and

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communication systems to police forces. Section 163 of the Criminal Justice and Public Order Act, to which the new clause refers, is concerned with the provision of CCTV systems by local authorities. PITO is neither concerned with CCTV systems, nor is it a provider of services to local authorities. I therefore fail to recognise the link which the noble Lord is making. As I say, we are with him in spirit.
Lord McIntosh of Haringey: If the noble Lady will allow me, of course the organisation is not specifically and positively providing services to local authorities. However, Clause 97(3)(b) says that,
"The Organisation may carry out activities … relating to information technology equipment and systems for the use of … such other bodies as the Secretary of State may determine by order made by statutory instrument."
So PITO could serve local authorities if the Secretary of State thought that desirable.
Baroness Blatch: I am not going to argue with the noble Lord at this late hour. That presumably is the link by which the noble Lord has sought to put this amendment down. If there are concerns about the use of CCTV material, and I shall come to that in a moment, Part IV of the Police Bill is not the place to tackle it. I readily join with the noble Lord in condemning the irresponsible use of CCTV material. The systems are a serious and a very successful method, as the noble Lord has said, of preventing and detecting crime and they are not some frivolous form of cheap entertainment, nor should they be.
The Government believe that CCTV has enormous potential to combat crime—and the fear of crime, again a point made by the noble Lord. We are supporting the use of this technology through the use of the CCTV Challenge competition. However, we have always recognised that, if it is to be successful, systems must be operated and managed in a way that commands the confidence of the local community. That is why we strongly recommend that every public space scheme should have a code of practice which stipulates the purposes for which the system can and cannot be used and governs such issues as the control, storage and
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disposal of tapes. We have made it clear that no scheme will be successful in the CCTV Challenge competition unless it has proposals for a code of practice.
It would not be sensible or practical for the Government to seek to impose a national code of practice on CCTV schemes through legislation. Schemes vary enormously in terms of size and technical sophistication. What may be appropriate for one multi-camera town centre scheme would be wholly inappropriate for, let us say, a small scheme covering a car park.
We believe that the development of codes of practice which are tailored to the specific operating environment and the needs of the local community is the best means of regulating CCTV. The vast majority of public CCTV systems are owned or operated by accountable bodies which have an interest in ensuring that their systems are operated with integrity and respect for the public.
A statutory code of practice is not the way forward. Therefore I hope that the noble Lord will accept that we need to give more time to what seem at present on the face of it to be successful voluntary codes of practice in place in most areas of the country.
Lord McIntosh of Haringey: I am glad that the Minister finally used the words "successful voluntary codes of practice". I hope that she will agree that the model code of practice produced by the Local Government Information Unit is indeed valuable. She indicates by gesture that she does agree, and I am sure that the unit will be pleased with that indication.
On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 99 agreed to.
The Earl of Courtown: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at seven minutes past midnight.