HL Deb 26 November 1996 vol 576 cc203-56

House again in Committee.

Clause 89 [Authorisations to interfere with property etc.]:

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.

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: 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 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 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 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 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 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.

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 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— 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 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 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 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?

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 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: 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 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 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 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.

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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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.

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 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—

  1. (a) the fact that an authorisation or extension was applied for;
  2. (b) the kind of authorisation or extension applied for;
  3. (c) the fact that the authorisation was authorised as applied for or was modified;
  4. (d) the period of time for which the authorisation was given, and the number and duration of any extensions of the authorisation;
  5. (e) the offence specified in the authorisation or application, or extension of the authorisation; and
  6. (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 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 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 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 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 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 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 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 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.

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 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.

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 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.

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 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

  1. (a) the extent to which the material is disclosed;
  2. (b) the number of persons to whom any of the material is disclosed;
  3. (c) the extent to which the material is copied; and
  4. (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 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 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 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—

  1. (a) persons whom it considers represent the interests of chief officers of police of police forces in England and Wales, and
  2. (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 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". 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 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.

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 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 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.