Lords Sitting of 20 January 1997

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

Public Interest Immunity
Lord McNally Lord McNally asked Her Majesty's Government:
What proposals they have for encouraging bodies not covered by the Statement made on 18th December on public interest immunity certificates to adopt practices and procedures similar to those now adopted by the Government.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, my Statement to the House on 18th December last set out the Government's new approach to public interest immunity. Although their policy is not binding on non-governmental bodies, the Government believe that their new approach, as explained in the report which has been placed in the Library, is likely to inform the approach taken by non-governmental bodies. It will continue to be for the courts to supervise public interest immunity claims both by the Government and by non-governmental bodies.
Lord McNally: My Lords, I thank the noble and learned Lord on the Woolsack for that Answer. Does he not agree that the key basis for that Statement, which was made just before Christmas, was that the only ground for claiming public interest immunity was the belief that the disclosure would cause real harm? How do the Government expect that policy, which is to be enforced at governmental level, to be practised by the police, local authorities, health authorities and others? Is it simply a wish on the part of the Government, or are any guidelines to be issued? Can the noble and learned Lord tell the House whether requests for public interest immunity certificates by non-governmental bodies show an upward or a downward trend?
The Lord Chancellor: My Lords, I believe that the principle underlying the sustaining of public interest immunity certificates by the courts has been well understood as being damage likely to be caused to the functioning of the public service by the disclosure of the document in question and, in a case where it is sustained, that it is greater than the damage that would be done to the cause of justice by not disclosing in that particular case. I believe that the Government's Statement simply emphasised—perhaps more clearly than before—that that would also be the leading criterion in practice and, in particular, that an automatic reliance on classifications might obscure the real principle behind the doctrine. As I said in my Answer, I think that, once explained, that principle will inform the approach of non-governmental bodies in the future.
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I am not able to say at present whether there is any particular trend in applications by non-governmental bodies in this respect.
Lord Irvine of Lairg: My Lords, does the noble and learned Lord agree that in the recent Court of Appeal decision, Taylor v. Anderton, a claim for public interest immunity was successfully advanced by a chief constable for a class of documents—reports of officers investigating complaints against the police? Is any means available to the Government, short of legislation, to ensure that such claims—which the Government under their new policy would not themselves advance—stop?
The Lord Chancellor: My Lords, I am not absolutely certain, but I rather think that the Police Complaints Authority may have made that intervention. On the general law, in my submission, the principle is plain: the Court of Appeal was applying it in the case to which the noble Lord referred. It is perhaps worth pointing out in this connection that in his report on the matter Sir Richard Scott stated in the opening sentence of section K6.1:
"The law on public interest immunity in civil and in criminal trials is judge made. I do not believe that legislative intervention is necessary or, at present, desirable".
That is a part of the report which was instrumental in producing the result of the government Statement to which I have referred.

EU Policies and Developing Countries
2.41 p.m.
Lord Judd Lord Judd asked Her Majesty's Government:
What progress has been made within the EU on the rationalisation and integration of aid, trade and development policies towards the third world, and also on the reform of internal EU policies where these inhibit development in the third world.
The Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey): My Lords, the European Community's trade and development co-operation policies towards developing countries are brought together in the Lomé Convention and in other formal agreements with particular countries and regions. We shall continue to press for greater coherence in this area, including improved access for developing country products and further reform of internal policies such as the CAP.
Lord Judd: My Lords, I thank the Minister for that Answer. Does she not agree that as a matter of urgency we must bring together the triplicated aid administration within the European Union into one directorate which can be clearly accountable and efficient? Does she also not agree that it is high time that the EU aid programme was genuinely poverty focused, both geographically and within individual countries, and that trade preferences were geared to helping the poor; to promoting sustainable development; and, perhaps above all, to

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ensuring that the common fisheries policy and the common agricultural policy, with subsidised exports being dumped on the third world and undercutting local agricultural production, were reformed once and for all so that they work in harmony with the aid programme and not against it?
Baroness Chalker of Wallasey: My Lords, the answer to each of the noble Lord's questions is yes. Perhaps I may add that it is crucial that we get three things right: the framework for European development assistance, its allocation, and the management arrangements. I have pressed for that for a very long while, including in a speech last October at a Bradford University conference on future EC policy. We have put it on the agenda for next month's informal Development Council so that we can discuss the coherence which is so vital and which underlies all of the noble Lord's questions.
Viscount Waverley: My Lords, does the Minister agree that it is trade through increased inward investment, not aid, that should drive both donors and recipients? Is that a likely approach for any successor Lomé Convention?
Baroness Chalker of Wallasey: My Lords, I hope that that is so. A substantial work programme on trade liberalisation, particularly through the WTO, has been agreed. However, we need far better trade arrangements under the successor to Lomé IV. A Commission Green Paper on EU relations with the ACP post-2000 sets out various possibilities for future trade arrangements and is now being considered by member states. My concern has always been that some countries within the Community do not accept that access for developing country products is one of the most valuable ways of helping those countries to stand on their own feet. All British aid is devoted to that end.
Lord Stoddart of Swindon: My Lords, can the noble Baroness inform the House what proportion of the total British aid budget is channelled through the European Union? Is the Minister satisfied with the direction that that aid takes and that a disproportionate amount does not go to eastern European countries instead of deserving third world countries?
Baroness Chalker of Wallasey: My Lords, just over 50 per cent. of aid is channelled through multilateral institutions. I am satisfied that there is now better management. We have put a great deal of effort into achieving better management of spending by Brussels of member states' money. We have made monitoring and evaluation systems and personnel available to the European Commission. We have tried to work with the Commission in the best interests of developing countries. As far as concerns the split between the emerging countries of eastern Europe and the former Soviet Union and the rest of the world, we have insisted that the European Union concentrate its aid where it can do most good—on the poorest—and that means the
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poorest within countries. I believe that the balance is about right, but it is something that must be watched. I have never made any secret of that.
Lord Cledwyn of Penrhos: My Lords, can the noble Baroness confirm that all of the nations in the European Union make a reasonable contribution to the policies referred to in the Question?
Baroness Chalker of Wallasey: My Lords, I believe that most countries try their best. Some countries with wide bilateral programmes have greater experience than others with limited bilateral programmes, and have a better chance of succeeding, but we try to help one another.
Lord Brabazon of Tara: My Lords, does my noble friend agree it is ridiculous that Britain should give aid to a country like Zimbabwe which produces very good tobacco but hamper its trade in tobacco by subsidising the growth of very inferior tobacco in Europe?
Baroness Chalker of Wallasey: My Lords, that is one of the reasons why we need greater coherence in all Union policies. The British aid programme has not provided any assistance for tobacco growing for many years. We believe that there must be rationalisation of the kinds of inconsistencies that my noble friend has identified.
Lord Rea: My Lords, can the noble Baroness tell the House what proportion of our bilateral and EU aid to the poorest countries of the world goes to the poorest people, that is, the social sector, to give them the help that they really need so that they can stand on their own feet? I am referring to health and education. Has that aid gone up or gone down in real terms rather than simply as a proportion of our diminishing bilateral aid?
Baroness Chalker of Wallasey: My Lords, approximately 70 per cent. of British bilateral aid goes to the poorest countries. We have increased the amount spent on primary education, health and family planning. I cannot give the noble Lord the exact percentages at the Dispatch Box, but I will drop him a line on the subject. Within the particular country we seek to choose our projects with non-governmental organisations to target those who can benefit most. Undoubtedly, they will be the poorest. However, it is a very complicated matrix and generalised answers do not always provide the detail of how much is being done in primary education and particularly in family planning and primary health care—which are the essentials—together with water conservation and simple sanitation systems. We intend to continue to concentrate on those areas and persuade our colleagues in other member states to do likewise.
Lord Judd: My Lords, can the Minister say more about the co-ordination of policy within the European Union? There are very disturbing reports that the common fisheries policy is undermining fishing communities in third world countries which are utterly

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dependent on fishing for their livelihood. Does the Minister agree it is absolutely mad that British taxpayers should pay money through the aid programme to support people who are victims of the common agricultural policy by the dumping of food on the third world?
Baroness Chalker of Wallasey: My Lords, so far as the common fisheries policy is concerned, there is an EC third country fisheries agreement. Those policies should always be consistent with the Community's wider policies towards developing countries. As the noble Lord will know, a committee of this House is now studying EC third country fisheries agreements and will publish a report shortly. We look forward to that report. We believe it will help us make the case that we have already been making in the Commission.
We asked the Commission for a proposal for the reform of the beef regime, and indeed the dairy regime, this year. We await that proposal. We also feel it absolutely crucial to stop the nonsense of subsidised exports of beef to southern Africa which impede local beef production and exports, particularly in Namibia. All those matters are being managed. However, it is quite a battle to make the whole business coherent. That is why I made the comment about holding a discussion on coherence at the informal Development Council at the beginning of next month.

EU Law: Budget Proposal
2.51 p.m.
Lord Bruce of Donington Lord Bruce of Donington asked Her Majesty's Government:
Whether the European Commission's proposal to spend approximately £4 million to help lawyers and judges improve their knowledge of European Union law was featured in the Commission's budget for 1997 and, if so, under what title and chapter; and whether the proposal was made at the specific request of the Council of Ministers or any individual member state.
The Lord Chancellor: My Lords, the proposal was included in the 1997 European Communities draft budget. The title was, B5-3 Internal Market, and the chapter heading was B5-30 Measures concerning the internal market. Under the proposal, 5.6 million ecu, equivalent to £4.2 million, would be provided during 1997-99, of which 1.6 million ecu or £1.2 million would fall due in 1997. This is a Commission initiative. It was not the result of a request by the Council of Ministers or by the United Kingdom, and the Government are not aware of any request from individual member states.
Lord Bruce of Donington: My Lords, may I express my congratulations to Her Majesty's Government on having rejected the Commission's proposal? However, are the Government aware that there is no such thing as European common law or European statute law? The treaty is all that there is. All that lawyers are invited to do is distinguish the significance that the European Court of Justice is likely to place on the use of the
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preamble to the treaty, and the preamble and recitals of each regulation directive that comes forward. In most cases those exceed the text of the so-called law itself.
The Lord Chancellor: My Lords, all Community legislation might be regarded as statutory in the sense that it is made by organs of the Community. In so far as it has effect in this country, it is by virtue of the European Communities Act and Acts amending the same. So far as the construction of European legislation is concerned, the preamble, where there is one, may be of consequence along with the other parts of the instrument in question. The European Court of Justice, which is not exceptional, seeks to construe the instrument as a whole, including its full text and preamble.
Lord Renton: My Lords, is my noble and learned friend aware that the complexity of European law is due mainly to the obligation on the part of member states to harmonise their law under the Treaty of Rome, as amended; and that with 15 nations with 11 different languages and a number of different legal systems, that process has become very nearly impossible? Is my noble and learned friend further aware that Herr Rolf Wagenbaur, the eminent German lawyer who was largely responsible for advising the Commission on this matter until his retirement 18 months ago, advised that there should be fewer European laws, and that they should be better?
The Lord Chancellor: My Lords, it would be extremely difficult for anyone to dissent from the very succinct advice that my noble friend quoted at the end of his question. The first consideration relates to the need for a law. Where it is shown to be necessary, it should be as clear and succinct as possible. Where there is complexity, we should aim at simplification; however, where the existing law is complex it has to some extent to do with the nature of the problems being addressed by the law. Some areas of our own law might, for example, be regarded as somewhat complex.
Lord Gisborough: My Lords, does this attempt to train lawyers also apply to other professions that will work across the boundaries; or is it the case that the well-known moderation demonstrated by lawyers in relation to their charges will not be able to stand the cost of their training themselves?
The Lord Chancellor: My Lords, the short answer (though I am tempted to give the longer one) may be the wiser. This particular initiative deals only with lawyers.
Lord Bruce of Donington: My Lords, I accept the interpretation given of the whole question by the noble and learned Lord on the Woolsack. However, will he accept that the complexities to which he refers are in part due to the powers given to the Commission to be the sole interpreters, short of the court itself, of the provisions of the treaty? Does he further accept that the

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Commission's advice on various sections is very often contradictory and sometimes, I regret to say, unintelligible?
The Lord Chancellor: My Lords, perhaps the more unintelligible the interpretation, the less harm it can do. I agree that these matters are difficult. Anything that can properly advance understanding, skill and simplicity is to be supported. On the other hand, for reasons set out in the memorandum on this proposal, the Government took the view that this is not a particularly wise way to spend this sort of money.
Baroness Farrington of Ribbleton: My Lords, will the noble and learned Lord say whether the Government are sympathetic to the view that those in initial training in the legal profession face very difficult financial circumstances, and that were money to be spent, it would be better spent at that stage to enable the rising generation of lawyers to be fully conversant with European laws?
The Lord Chancellor: My Lords, the subject matter of European law is included in syllabuses for those seeking to enter the legal profession. Sustaining those aspects of the syllabus costs money. It is desirable that on entry to the profession those who seek to qualify should have an understanding of European law.

Northumbrian Water: Fluoridation Decision
2.58 p.m.
Baroness Brigstocke Baroness Brigstocke asked Her Majesty's Government:
Whether the board of directors of Northumbrian Water is entitled to refuse to accede to the request from eight health authorities to improve the dental health of their clients by extending fluoridisation of their water supplies to some 1.7 million residents in the north east.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege): My Lords, the interpretation of Northumbrian Water's powers and responsibilities under the Water Industry Act 1991 is a question for the water undertakers initially, but ultimately for the courts.
Baroness Brigstocke: My Lords, I thank my noble friend the Minister for that reply. Do the Government agree that failing to fluoridate water supplies is contrary to the interests of public health? Does the Minister further agree that legislation needs amending in order to make fluoridation mandatory once health authorities have decided that the move would have significant public health benefits to the population and particularly to children?
Baroness Cumberlege: My Lords, we agree with my noble friend that fluoridation is a very cost-effective and
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clinically effective way of preventing tooth decay. That is especially true in children, but it also has long-term effects in adults. We also believe that it is a matter for local decision. Legislation is already in place to enable water companies to fluoridate at the request of health authorities once they have consulted with the general public. We encourage water companies to consider such requests very carefully.
Lord Dean of Beswick: My Lords, before the water authority took this action were the people in the area receiving fluoridation? If so, is it not high-handed for the water authority to withdraw such a measure, which is a proven health guard for children's teeth on a massive scale?
Baroness Cumberlege: My Lords, I understand that Northumbrian Water is an amalgamation of previous water boards and that parts of the area which it now covers were receiving and continue to receive fluoridated water. However, the areas which were not previously fluoridated remain that way, which is a decision of the water company.
Lord Elliott of Morpeth: My Lords, does the Minister accept that the three water companies in northeast England, which are now joined together as Northumbrian Water, have consistently over many years accepted the guidance of health authorities in this regard and that fluoridation has always been a highly controversial subject? The problem for the companies is that they must make the final decision and, as this is a social rather than a business issue, they strongly believe that legislation needs to be altered. Is my noble friend aware of the recent discussions between the Water Companies Association, the Fluoridation Society and the British Dental Association, all of which agreed that there should be legislative change?
Baroness Cumberlege: My Lords, I am grateful to my noble friend for clarifying the situation as regards Northumbrian Water. We believe that the legislation is adequate. We understand that between water authorities there is some difference in regard to its interpretation and the department has prepared guidance which is almost ready to be circulated. It is still in draft form and we have consulted widely on it. We hope to circulate it in the spring.
Baroness Fisher of Rednal: My Lords, as honorary president of the Fluoridation Society—I receive no emoluments—I am disturbed by the Minister's interpretation of the Water Act. Is the Minister aware that the Act was amended to make it perfectly clear that if the health authorities do their work correctly—that is, get in touch with all the persons concerned, have a public meeting at which fluoridation is agreed, and then ask the water authorities for that to be done—fluoridation can be put into operation and the water companies cannot say, "No, we are not playing the game"? It seems strange that the Government do not know whether they are coming or going.
Baroness Cumberlege: My Lords, I can assure the noble Baroness that the Government are definitely

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coming. She has clearly stated the situation as she sees it as honorary president of the Fluoridation Society. It is a matter for local decision-making and we believe that Northumbrian Water has acted within its powers. However, we believe that there is room for further clarification and that is why we shall be publishing a circular in the spring.
Baroness Gardner of Parkes: My Lords, the noble Baroness, Lady Fisher, her time being limited, did not of course mention that Birmingham has had fluoridated water for longer than any other area of the country and has by far the best dental health in the country. Has my noble friend seen the press release on this subject which was put out by Northumbrian Water? In that it gives its doubt about the legality as its reason for refusal. Following the lengthy Strathclyde case, it was made plain that there was no clear right to put fluoride in the water. For that reason, in 1985 the Fluoride Act was passed by Parliament. Therefore, is it not wrong for the water authority to make a commercial decision—it is quite entitled to make a decision on such grounds—but then to hide behind the test of possible legal doubt when Parliament has passed an Act to permit the measure?
Baroness Cumberlege: My Lords, I understand that Northumbrian Water acted within its powers. It also acknowledged that fluoridation improves dental health. However, if the health authorities are concerned that the decision was unreasonable they have recourse to the courts.
Baroness Jay of Paddington: My Lords, it is good news that the Department of Health will be issuing further guidance on the matter. However, can the noble Baroness today give a little more clarification to local health authorities? Are the Government prepared to allow the situation which appears to have developed in Northumbria and elsewhere throughout the country, in which local health authorities are spending hard-pressed, much valued NHS resources on local consultation as regards fluoridation, only then to be told by privatised water companies that that cannot go ahead? There appears to be a strange balance of priorities.
Baroness Cumberlege: My Lords, the situation is clear with regard to the Act. As I have said, as with a lot of legislation, people choose to interpret it differently. The guidance which will be issued in the spring will set the matter clear once and for all.
Lord Campbell of Croy: My Lords, can my noble friend confirm that all the water from natural sources in this country contains fluoride—it is a natural ingredient—and that the optimum percentage already exists in certain areas? Does she agree that if the matter is left to individuals to ingest fluoride they can take far too much, resulting in, for example, discolouration of the teeth?
Baroness Cumberlege: My Lords, as my noble friend said, fluoride is a natural product in some water. However, the intention of the Act is to ensure that where
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there is not sufficient to prevent dental caries more can be added. Mottling occurs when fluoride is at a much higher level. Although that is not harmful it is certainly found to be unattractive. I believe there is nothing further to say.

Architects Bill [H.L.]
3.7 p.m.
The Lord Chancellor: My Lords, I beg to move that this Bill be now read a second time.
It consolidates the law relating to architects which dates back to two pre-war Acts which established a system of registration of architects and prohibited use of the title "architect" by unregistered persons. Those Acts have since been amended both by primary legislation and by Orders in Council implementing the EC directive on architects, providing for the recognition of architects qualified in other EC states.
Most recently, a number of reforms were carried into law last Session as Part III of the Housing Grants, Construction and Regeneration Act 1996. The main purpose of the changes to the law relating to architects made by that Act was to rename and revise the composition of the Architects' Registration Council of the United Kingdom, the body responsible for the registration of architects, and to modernise the arrangements for disciplining registered architects. The changes were effected by large-scale textual amendment of the pre-war Acts, adding to the desirability of the present consolidation. The relevant professional bodies have been consulted about the Bill, and it has been welcomed by the Architects' Registration Council of the United Kingdom and by the Royal Institute of British Architects.
In common with the two following consolidation Bills, this Bill will be referred in the usual way to the Joint Committee on Consolidation Bills if your Lordships are content to give it a Second Reading. I am sure that the House will wish to join me in thanking the draftsmen of all three Bills for continuing their important work in preparing consolidation Bills. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(The Lord Chancellor.)
On Question, Bill read a second time, and referred to the Joint Committee on Consolidation Bills.

Lieutenancies Bill [H.L.]
The Lord Chancellor: My Lords, I beg to move that this Bill be now read a second time.
Your Lordships will be aware that Her Majesty appoints a lord lieutenant for each county in England and Wales or area in Scotland. The lord lieutenant appoints deputy lieutenants. Her Majesty may also appoint one or more "lieutenants" for each county or area. The lord lieutenant, lieutenant and deputy lieutenants of a county or area perform a number of statutory and non-statutory functions in the area for

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which they are appointed. The system is slightly different in the City of London and in certain cities in Scotland.
This Bill consolidates provisions in the Reserve Forces Act 1980 relating to the lieutenancies. Those provisions, themselves a consolidation of numerous earlier enactments dating back to 1662, have been heavily amended since 1994 in relation to local government reorganisation. Further amendments to the 1980 Act are made by Schedule 6 to the Reserve Forces Act 1996, and this consolidation is therefore a timely one.
As lords lieutenants now have relatively few functions relating to defence, it is thought more appropriate for the law relating to them to be separated out from the legislation governing the reserve forces. The Bill contains all the general statutory provisions relating to the appointment, jurisdiction and functions of lord lieutenants, lieutenants and deputy lieutenants in Great Britain. It does not include a few remaining provisions conferring specific functions on lord lieutenants or deputy lieutenants; these are best left in their existing statutory context. Most of the functions of lord lieutenants and deputy lieutenants are now non-statutory.
Moved, That the Bill be now read a second time. (The Lord Chancellor.)
Lord Taylor of Blackburn: My Lords, I take it that this consolidation Bill has been brought about because of reorganisation in local government as much as anything else. Clause 5 on page 3 of the Bill relates to the clerk of the lieutenancy. Perhaps I may ask the noble and learned Lord the Lord Chancellor whether it is correct that, where a new authority is created, deputy clerks cannot be appointed as well as clerks.
The Lord Chancellor: My Lords, on this aspect of the matter the Bill is a consolidation of the existing law and therefore the statutory provision to which the noble Lord refers to in Clause 5 on page 3 is the present statutory position. If a power to appoint deputy clerks were implied, it would be implied in this respect also. No change in the law is made in this respect by the consolidation.
On Question, Bill read a second time, and referred to the Joint Committee on Consolidation Bills.

Nurses, Midwives and Health Visitors Bill [H.L.]
The Lord Chancellor: My Lords, I beg to move that this Bill be now read a second time.
The Nurses, Midwives and Health Visitors Act 1979 established the United Kingdom Central Council for Nursing, Midwifery and Health Visiting and National Boards for England, Scotland, Wales and Northern Ireland and made provision for the administration of the three professions. The 1979 Act has been extensively amended by the Nurses, Midwives and Health Visitors Act 1992 which reorganised the statutory bodies and
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made other changes. A considerable number of more limited amendments have been made by other legislation. This Bill, which extends to England and Wales, Scotland and Northern Ireland, consolidates the 1979 Act with all these amendments.
Moved, That the Bill be now read a second time.— (The Lord Chancellor.)
On Question, Bill read a second time, and referred to the Joint Committee on Consolidation Bills.

Dangerous Dogs (Amendment) Bill [H.L.]
Read a third time, and passed, and sent to the Commons.

Obscenity Bill [H.L.]
The Earl of Halsbury: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—(The Earl of Halsbury.)
On Question, Motion agreed to.

Police Bill [H.L.]
3.14 p.m.
Report received.
Schedule 1 [Appointment of Members of the Service of Authorities.]:
[Amendments Nos. 1 and 2 not moved.]
Schedule 2 [Other Provisions about Members of Service Authorities.]:
The Minister of State, Home Office (Baroness Blatch)The Minister of State, Home Office (Baroness Blatch) moved Amendment No. 3:
Page 58, line 8, leave out ("appointed by the Authority") and insert ("or of any other member of NCIS or, as the case may be, the National Crime Squad (other than a member appointed by the Director General by virtue of section 9(8) or 55(8))").
The noble Baroness said: My Lords, paragraph 13 of Schedule 2 already prohibits the police members of the service authorities from voting on motions to censure the directors general of NCIS and the National Crime Squad. This reflects the concerns of the police service itself that the police members of the service authorities should not sit in judgment on their senior colleagues running the two services. The amendment extends the prohibition to include other permanent senior police members of the services who will hold the rank of assistant chief constable and the senior civilian members of the services appointed by the service authorities. This ensures that the police members of the service authorities are unable to vote on motions censuring any of their senior police colleagues in the two services. The

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extension to the senior civilian members who will hold posts of roughly equal status is consistent with the wider policy aim of ensuring that the civilian staff are treated, as far as possible, the same as their police counterparts.I beg to move.
On Question, amendment agreed to.
Clause 7 'Removal of Director General by the Authority.]:
Baroness Blatch Baroness Blatch moved Amendment No. 4:
Page 5, line 22, after ("to") insert ("section 21 or to").
The noble Baroness said: My Lords, in speaking to Amendment No. 4, I shall speak also to Amendments Nos. 7, 8, 14, 19, 20 and 186. I have already given notice of these amendments and provided a brief explanation of the reasons for them, which I will now repeat for the record.
Clauses 21 and 66 enable the service authorities to pay to their employees and officers pensions and gratuities. The directors general and permanent police members of NCIS and the National Crime Squad will be appointees and the amendments to Clauses 21 and 66 put beyond doubt that the service authorities will be able to pay pensions to them.
It is the Government's intention that pensions paid to the directors general and the permanent police members will be consistent with the pensions they would have received had they remained with the police force. These amendments will therefore require the service authorities to have regard to the Police Pensions Act 1976 or the equivalent Northern Ireland provisions in exercising their powers to pay pensions to the directors general and the permanent police members.
As an additional safeguard, the service authorities will be required to seek the Secretary of State's consent before exercising their powers to pay pensions to the senior police members. In practice the Secretary of State will be able to assure himself that the pension scheme to apply to the senior police members is consistent with the scheme for their senior colleagues in police forces.
The amendments to Clauses 7 and 53 are consequential on the amendments to Clauses 21 and 66.
It is not necessary for the Bill to make similar provisions for the police officers seconded to NCIS and the National Crime Squad. Police officers from forces in England, Wales and Northern Ireland will remain members of their police forces for pensions-related purposes while seconded to the services. The amendments to Schedule 9 ensure that the same applies to Scottish police officers seconded to NCIS or to PITO. I beg to move.
On Question, amendment agreed to.
Schedule 3 [Levies Issued by NCIS Service Authority.]:
Baroness Blatch Baroness Blatch moved Amendment No. 5:
Page 59, line 38, leave out ("the Secretary of State may prescribe") and insert ("may be prescribed").
The noble Baroness said: My Lords, in speaking to Amendment No. 5, 1 shall also speak to Amendments Nos. 6, 15, 16, 17 and 18. These amendments to
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Schedules 3 and 5 are concerned with levies issued by the National Criminal Intelligence Service and the National Crime Squad service authorities respectively.
The amendments are required to ensure clarity and consistency of drafting within and between the two schedules. Amendments Nos. 5 and 17 ensure consistency with the definition of "prescribed" which appears at paragraph 1(5) of Schedules 3 and 5. Amendments Nos. 16 and 18 are further technical amendments to ensure consistency of drafting, and Amendment No. 15 replaces an erroneous reference to "regulations" with "an order" and ensures consistency with Clause 62. Amendment No. 16 is consequential upon this amendment. I beg to move.
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 6:
Page 60, line 30, leave out ("may specify") and insert ("considers appropriate").
On Question, amendment agreed to.
Clause 21 [Pensions and gratuities]:
Baroness Blatch Baroness Blatch moved Amendments Nos. 7 and 8:
Page 9, line 29, at end insert—
("(1A) The NCIS Service Authority may—

(a) pay, or make payments in respect of, such pensions or gratuities as it may determine, with the consent of the Secretary of State, to or in respect of any persons who are or have been the Director General of NCIS or police members of NCIS to whom section 9(2)(a) applies;

(b) provide and maintain such schemes (whether contributory or not) as it may determine, with the consent of the Secretary of State, for the payment of pensions or gratuities to or in respect of any such persons.

(1B) Before exercising its powers under subsection (1A), the Authority shall have regard to any provision made under the Police Pensions Act 1976 or section 25(2)(k) of the Police Act (Northern Ireland) 1970.").
Page 9, line 32, leave out ("Authority's officers or employees") and insert ("persons mentioned in subsection (1) or (1A)").
The noble Baroness said: My Lords, I beg to move Amendments Nos. 7 and 8 en bloc.
On Question, amendments agreed to.
Clause 23 [Aid by and for NCIS]:
Baroness Blatch Baroness Blatch moved Amendment No. 9:
Page 11, line 30, leave out ("or").
The noble Baroness said: My Lords, in moving Amendment No. 9 I wish to speak also to Amendments Nos. 10, 11, 23, 183, 184, 185, 187 and 189. Clause 23 mirrors Section 24 of the Police Act 1996. It enables NCIS to assist, and to receive assistance from, police forces in England, Wales and Scotland, the Royal Ulster Constabulary and the National Crime Squad, in order to meet special demands on resources. This assistance may take the form of the provision of constables. Clause 23(4), as currently drafted, ensures that a constable provided by NCIS to a police force or the Royal Ulster Constabulary is under the direction and control of the chief constable of the force to which the NCIS constable is loaned. The amendment to Clause 23(4) will ensure that a constable provided by NCIS to assist the National Crime Squad is under the direction and control of the National Crime Squad director general.
The director general of the National Crime Squad will be liable for any wrongful acts of constables provided in this way. An amendment to Clause 86(5) is required to ensure that the National Crime Squad service authority is able to meet from its service fund any costs or damages awarded against constables loaned by NCIS in connection with proceedings for wrongful acts committed while serving with the National Crime Squad. The Bill already makes adequate provision for constables loaned from police forces.
Minor amendments are also needed to Schedule 9 to ensure that a police authority in England, Wales or Scotland and the Police Authority for Northern Ireland are similarly able to meet from police funds any costs or damages arising from the chief constable's liability for wrongful acts committed by officers loaned to the force or constabulary by NCIS. I beg to move.
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 10:
Page 11, line 30, after ("Constabulary") insert ("or the National Crime Squad").
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 11:
Page 11, line 33, at end insert ("or the Director General of that Squad").
On Question, amendment agreed to.
Clause 38 [Appeals]:
Baroness Blatch Baroness Blatch moved Amendment No. 12:
Page 16, line II, leave out from beginning to ("is") in line 12 and insert ("Where the Director General of NCIS, or a police member to whom section 9(2)(a) applies,").
The noble Baroness said: My Lords, in moving Amendment No. 12 I wish to speak also to Amendments Nos. 13, 21 and 22. These amendments ensure that the directors general of the National Criminal Intelligence Service and the National Crime Squad will have access to the same appeals tribunal machinery as the permanent police members of these services, and will also place them on an equal footing with their senior colleagues in police forces.
Your Lordships will recall that following a government amendment in Committee, Clauses 38 and 82 of the Bill already ensure that permanent police members of both services will have access to a police appeals tribunal when facing dismissal or a requirement to resign. It was always our intention that this should include the directors general themselves who are permanent police members holding the rank of chief constable. These further minor amendments are necessary to bring the directors general within the scope of Clauses 38 and 82. They will in this way ensure that, as with the other permanent police members, the directors general will have access to the same appeals tribunal machinery as their senior colleagues in police forces.
As I said in Committee, similar provision is not needed for police officers seconded to NCIS or the National Crime Squad because they would
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automatically have access to the usual police appeals machinery in their home force if there was any question that they might be dismissed, required to resign or reduced in rank. I beg to move.
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 13:
Page 16, line 13, after ("37") insert ("he").
On Question, amendment agreed to.
Clause 53 [Removal of Director General by the Authority]:
Baroness Blatch Baroness Blatch moved Amendment No. 14:
Page 23, line 18, after ("to") insert ("section 66 or to").
On Question, amendment agreed to.
Schedule 5 [Levies Issued by NCS Service Authority]:
Baroness Blatch Baroness Blatch moved Amendments Nos. 15 to 18:
Page 62, line 18, leave out ("regulations") and insert ("an order").
Page 62, line 18, leave out ("require") and insert ("requires").
Page 62, line 44, leave out ("the Secretary of State may prescribe in regulations") and insert ("may be prescribed").
Page 63, line 30, leave out ("may specify") and insert ("considers appropriate").
The noble Baroness said: My Lords, I beg to move Amendments Nos. 15 to 18 en bloc.
On Question, amendments agreed to. Clause 66 [Pensions and gratuities]:
Baroness Blatch Baroness Blatch moved Amendments Nos. 19 and 20:
Page 27, line 17, at end insert
("(I A) The NCS Service Authority may

(a) pay, or make payments in respect of, such pensions or gratuities as it may determine, with the consent of the Secretary of State, to or in respect of any persons who are or have been the Director General of the National Crime Squad or police members of the Squad to whom section 55(2)(a) applies;

(b) provide and maintain such schemes (whether contributory or not) as it may determine, with the consent of the Secretary of State, for the payment of pensions or gratuities to or in respect of any such persons.

(1B) Before exercising its powers under subsection (1A), the Authority shall have regard to any provision made under the Police Pensions Act 1976 or section 25(2)(k) of the Police Act (Northern Ireland) 1970.").
Page 27, line 20, leave out ("Authority's officers or employees") and insert ("persons mentioned in subsection (I) or (I A)").
The noble Baroness said: My Lords, I beg to move Amendments Nos. 19 and 20 en bloc.
On Question, amendments agreed to.
Clause 82 [Appeals]:
Baroness Blatch Baroness Blatch moved Amendments Nos. 21 and 22:
Page 30, line 41, leave out from beginning to ("is") in line 42 and insert ("Where the Director General of the National Crime Squad, or a police member to whom section 55(2)(a) applies,").
Page 30, line 43, after ("81") insert (", he").
The noble Baroness said: My Lords, I beg to move Amendments Nos. 21 and 22 en bloc.
On Question, amendments agreed to.
Clause 86 [Liability for wrongful acts of constables etc.]:
Baroness Blatch Baroness Blatch moved Amendment No. 23:
Page 33, line 4, after first ("of") insert ("section 23 above or").
On Question, amendment agreed to.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 24:
Before Clause 91, insert the following new clause—
EXCEPTIONS TO SECTION 91
(".—(1) Where an entry on or interference with property is in respect of premises and the consent of the occupier has not been obtained to that entry or interference, an authorisation by an authorising officer given in accordance with section 91 shall, subject to subsection (2), not take effect unless it has been approved by a Commissioner appointed under section 95.
(2) Where it is not reasonably practicable to apply to a Commissioner for advance approval under subsection (1), the authorising officer may authorise the action under section 91(2) but must as soon as reasonably practicable apply to a Commissioner for approval, specifying the reasons why it was not reasonably practicable to do so before.").
The noble Lord said: My Lords, with this amendment, and the amendments grouped with it, we move to Part III of the Bill which is almost vulgarly known as intrusive surveillance although the title of this part in the Bill is rather more bland. I apologise to the House for the lengthy list of amendments which are grouped for consideration together. I hope that your Lordships will forgive me if I start by explaining why there are so many and what they do.
Amendment No. 24, which, in our view, is the key amendment in this group, refers to prior judicial approval of intrusive surveillance in the form of approval by a commissioner appointed under Clause 95. In order to make that amendment workable it is necessary that there should be not one commissioner but a body of commissioners. The provisions of Clause 95 and other clauses which provide for a body of commissioners rather than a single commissioner are contained in a whole series of amendments starting with Amendment No. 51.
I should say at this stage that the Government have also produced a version of this series of amendments which starts with Amendment No. 50 and includes all the amendments grouped with it. The Government's intention in increasing the office of commissioner from one person to a body is virtually identical to ours, except that they propose that there should be a chief commissioner and other commissioners rather than a body of more equal commissioners as we propose. I
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have no strong feelings on the matter. If Amendment No. 24 is accepted and there is to be more than one commissioner, I should be quite content to follow the form proposed in the Government's amendments rather than that proposed in our amendments, if the Government feel strongly enough about the matter to press me to that conclusion.
However, our amendment on prior judicial authorisation by a commissioner also requires that the whole role and remit of the commissioner, or the body of commissioners, should be strengthened. Amendments in this group seek to do that.
Amendment No. 65 refers to the need for an assurance that the commissioners would have enough staff to do the job that is required of them. I do not propose to move Amendment No. 69, which would provide that the commissioners rather than the Secretary of State would decide on the size and composition of the staff.
My Amendment No. 74 refers to the need for the commissioner to review every authorisation which is given. That, in turn, is echoed by government Amendment No. 76. I do not feel strongly about whether my amendment or the government amendment should be the one accepted.
Amendment No. 77 provides that any complaints against the decision of the commissioner should be considered under rules laid down in the relevant section of the Police and Criminal Evidence Act 1984.
Amendment No. 80 would restore the right of appeal of a complainant against the determination by a commissioner. Finally, although I summarise, Amendment No. 89 would remove the restriction in the commissioner's activities which require him only to operate under judicial review criteria. It provides instead that he should act, as necessary, in accordance with the circumstances in the case rather than having to rely on a decision, of which he is disapproving, being perverse.
In addition to those amendments in my name, the noble Lord, Lord Rodgers of Quarry Bank, has indicated that he wishes Amendments Nos. 26, 29, 34 and 39, which stand in his name, to be considered in the same debate. I readily agree to that. It is clearly sensible that the different options for judicial authorisation of intrusive surveillance should be considered together. The noble Lord will recognise that if my amendment is carried that does not mean that his amendments are consequential upon my amendment. Indeed, they propose a different version of authorisation from that which I propose.
With that rather lengthy introduction, for which I apologise, I return to the debate on the most fundamental issue, which exercised not only Members of the Committee but also a large part of the broadsheet and tabloid press and the people of this country over the past weeks. I do not in any way regret that debate. When I spoke on this matter in Committee I said that we had not made up our minds on a number of the issues which give rise to this debate. I hope that your Lordships will agree that in our position today we have recognised the force of the arguments put forward in particular the arguments against the Government's Bill.
I recall the words in Committee of the noble and learned Lord, Lord Browne-Wilkinson, who said that, contrary to what otherwise might be suggested, he was strong on crime. The noble and learned Lord said that he was steely on liberty, and supported the surveillance powers which are made statutory in this Bill and which have been exercised without statutory authority for a very considerable time. However, he said at the same time, and I agree with him, that the statutory basis, as opposed to the guidelines which were issued first in 1977 and then in 1984, is very much better than action under administrative procedures, as was provided in the previous guidelines.
The noble and learned Lord said that the fundamental principle must be that officers of the Crown cannot invade our property, and if they do so their action would be illegal. That, I believe, is the fundamental issue that your Lordships wish to address and which we, in these amendments, now address.
The fundamental point is that there should be not just independent judicial authority for intrusive surveillance, but that such authorisation should be in advance. That is the difference between us and the Government despite the welcome amendments, to which I shall return in a moment. However, if there is to be judicial authorisation of intrusive surveillance, that judicial authorisation must be effective in the sense that it is not merely nominal formal authorisation but real authorisation by somebody who knows what he or she is doing. It also must be effective; it must not hold up recognition of the need for being tough on crime, for effective policing in pursuit of the prevention and detection of serious crime, a view which we all share.
That is why there are a number of differences in our approach and that of the Government, and of the noble Lord, Lord Rodgers of Quarry Bank. The first difference is that our amendment is more concerned with premises than with property. I am not a lawyer but there are legal definitions of premises and property, and in common parlance we all know what we mean. The term "premises" includes private residential homes. But it also includes workplaces, doctors' surgeries, lawyers' offices, the confessional, lock-up garages, hotel lounges and all places in which the consent of an occupier would have to be obtained before it would be possible to plant a bug without trespass and without committing an offence. Therefore, we believe that the prior judicial authorisation procedures should cover all premises, not just private residential premises, to which most of the judicial concern has been addressed.
At the same time we do not believe that it would be appropriate for prior authorisation to apply to all property. Property includes, for example, vehicles. Intrusive surveillance of vehicles would include not just the bugging of a vehicle but also the tagging of a vehicle in order to determine where it is and where it is going. There is no difference in principle between that and following a vehicle either in another vehicle, a helicopter, or by some other means. There is no issue of civil liberty involved in that.
The issue is a practical one: can a judge or a body of judges be expected to authorise such everyday activities as the tagging of vehicles? It is for that reason that we have chosen to address in our amendment premises rather than property.
Secondly—this differentiates us from the amendments of the noble Lord, Lord Rodgers of Quarry Bank—we recognise that from time to time occasions arise when the police must take emergency action, where there is simply no time to go to a judge for approval before intrusive surveillance takes place. If, for example, there has been a police action against a group of drug smugglers and those people have holed up in a house where it is expected they will make plans for the next shipment, how to dispose of the last shipment, or whatever it may be, it is no good the police waiting until they have been to a judge for authorisation before they plant a bug. If they are to catch those people before they go away they will have to put a bug in straightaway. Our amendment provides that a chief officer of police can authorise a bug under those circumstances, but that he has to go as soon as is practicable to a judge for retrospective authorisation. That is an important proviso in reaching a balance between effective policing and civil liberties.
There is then the question of who the judges should be. The noble Lord, Lord Rodgers of Quarry Bank, proposes that they should be circuit judges. As I understand it, there are 540 circuit judges. There may be about 2,000 such authorisations a year. That means that on average each circuit judge concerned may be authorising four a year. Under those circumstances, can circuit judges acquire the expertise which enables them properly to question the case put before them by a chief officer of police? I suggest not.
It is preferable to have a body of people—in this case the surveillance commissioners—which is made up of senior judges—in other words, of a higher rank than circuit judges—who are recruited for that purpose, of whom there are, by the Government's admission, enough to do the job effectively, who will know what questions to ask, who will know what problems to identify, who will be much more confident in allowing or disallowing applications from a chief officer of police. That third difference from the proposals of the noble Lord, Lord Rodgers, again identifies the balance that we strike between civil liberties and effective policing. It meets both sides of the argument.
I turn now, briefly, because we shall have a later opportunity to debate them, to the Government's proposals. On Thursday of last week, shortly after we tabled our amendments, the Government changed tack considerably. I pay tribute to them for their flexibility in this. They acknowledge, as I have already said, that there should be a body of commissioners—I nearly said a corps of commissioners—rather than just one commissioner. That is welcome. They also propose in Amendments Nos. 76, and 101 to 103 that there should be a procedure of immediate notification to the commissioner of any authorisation of intrusive surveillance, and that under certain circumstances there should be the power to quash an authorisation if it is inappropriate or illegal. Those are welcome changes.
I in no way wish to criticise them, but they do not provide for the fundamental principle of prior judicial authorisation of which the noble and learned Lord, Lord Browne-Wilkinson, reminded us, and which we have been reminded many times in recent weeks is critical to civil liberty in this country.
We are concerned not just that serious crime be pursued, but that we preserve the principle first enunciated, although not originated, in the case of Entick v. Carrington: the Englishman's home is his castle, and that officers of the Crown or the state have no right to intrude into that home without some independent justification or authority. I believe and commend strongly to your Lordships that this package of amendments provides a proper balance in a way that neither the Government's proposals nor the proposals of the noble Lord, Lord Rodgers of Quarry Bank, do. I beg to move.
3.45 p.m.
Baroness Blatch: My Lords, the noble Lord has sat down, but perhaps I could say technically "before the noble Lord sits down", and ask him about a point that was not covered by him in presenting the amendment, which is pretty important to the debate. As I understand it, by Amendment No. 80 the noble Lord has removed Clause 96(4). If that is the case, it suggests that the commissioner, who, as the noble Lord knows, will be or will have been a senior High Court judge, could be called to court. Is that what is being suggested? He could be called to court to give evidence to justify his decision to authorise intrusive surveillance. If that is true, it would be a new departure. Would it not remove the separate function between the judiciary and investigative agencies and bring the judiciary wholly into the investigative process.
Lord McIntosh of Haringey: My Lords, I understand the Minister's difficulty. We are on Report. It is true that, although this amendment was moved in Committee, that point was not raised from the Government Front Bench. The House is now considering the matter for the first time.
The fact that chief constables have in the past been called to court to justify their intrusive surveillance activity has been caused primarily because they were operating under administrative guidelines rather than legislation. The extended role of the commissioners that we propose largely removes the necessity for that sort of justification in court. In the Government's own proposals, and our proposals, there is a whole series of measures relating to the accountability of the commissioners, both in their action at the beginning with prior authorisation and in the way in which they consider the whole range of intrusive surveillance activity.
Nothing in our amendment takes away from the responsibility of the chief officer of police, which is provided in Clause 91, to satisfy himself that he is acting in accordance with the law in authorising his subordinate's application, which in turn goes for
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approval to the commissioner, who is a senior judge. Our view is that there is no conflict between what is proposed for or by the commissioner and the rule of law.
Baroness Blatch: My Lords, again, with the leave of the House, that was not the question I asked. I was asking the noble Lord whether the authorising officer—in this case the commissioner, who would be or would have been a High Court judge—would be available to be called to the court to defend the authorisation and become embroiled in the criminal investigation, as opposed merely to defending the authorisation that was made. In other words, chief constables can be brought into court to defend their decisions and to answer questions that drag them straight into the investigative process. Is the noble Lord saying that this particular commissioner would not be available to do that or that in certain circumstances he would be?
Lord McIntosh of Haringey: My Lords, the Minister is in danger of raising matters which she should raise in her speech rather than by interrogation across the Table. The answer to that question is that we have deliberately not changed the wording in Clause 91; in other words, the authorising officer is still the chief officer of police, but he needs the prior approval of the commissioner. Therefore there is no question of the commissioner being called into court.
Lord Rodgers of Quarry Bank: My Lords, as the noble Lord, Lord McIntosh, has explained, for the convenience of the House I have grouped Amendment No. 26 with this group. I should perhaps make it clear now that, irrespective of the decision of the House on Amendment No. 24, my present intention is to test the opinion of the House on Amendment No. 26 when the time comes.
I say first to the noble Lord, Lord McIntosh, that I welcome his support, even at this late hour, for prior judicial authorisation of electronic surveillance. There is always joy when a sinner comes to repentance. I will not dwell on the long and clearly painful process through which the noble Lord has gone; I only say that I sympathise with him in relation to the difficulties created by his master in another place. Without pursuing that further, I only say—I must make this point—that my regret is that the practical proposals to which he has just referred in moving this amendment fall a long way short of what I would have hoped, given the conversion on the principle itself.
The noble Lord, Lord McIntosh, fairly represented the differences between his amendment and the one standing in my name and that of my noble friend Lord Lester, but I want to refer first to his and then turn to Amendment No. 26.
In the first place, I believe that we are all agreed—and this is a point which has been made constantly by the Minister herself—that decisions on bugging must be implemented with the minimum justifiable delay. That is a point she has made before and will no doubt make again. I do not want to dispute that argument from these Benches, but this would simply not be possible if some 1,300 cases, the figure for England and Wales in 1995

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to which the noble Lord, Lord McIntosh, has already referred, are to be referred to three or some other small number of commissioners. The noble Lord has not explained the actual process by which recommendations would be made by police scattered across the country and by customs officials to the judges, the commissioners, who would have to make the decisions.
On the face of it, the recommendations and the decisions would be made by fax, which is hazardous in itself and, more important, excludes any of the arguments which will necessarily have to take place between the authorising officer, if a—judicial one, and the police who make the recommendation. So far as I can judge from what we know and from what the noble Lord has said, this process would be cumbersome, unreliable and slow. It would be very unlikely to work.
The noble Lord himself drew attention to this second point: the recognition in subsection (2) of the new clause that there are circumstances when it may not be "reasonably practicable"—they are the words in the amendment—to authorise action through a judicial source. I find this profoundly disturbing, because if we believe that urgent action is always necessary and it is necessary to reconcile operational needs with the need for judicial authorisation, then to have a let-out subsection of this kind is very dangerous. It will certainly allow the police sometimes to act without judicial authorisation; and, beyond that, given that the police will have to give approval and that the commissioners will have to give approval at a later date, it seems to me to be a formula for indecision and muddle. Indeed, it would be the worst of all worlds.
The third point is the most powerful one and one which I hope your Lordships will examine this afternoon. That is the dual role for the commissioners which now seems to be proposed. In the Bill as it stands, the police decide, the commissioners review. In Amendment No. 26, my amendment, the police recommend, the judge decides, the commissioners review. But in the amendment on the Marshalled List by the noble Lord, Lord McIntosh, the police recommend and the commissioners decide, except when the police still decide, in which case the commissioners approve and the commissioners review. Therefore, the commissioners will be both making the decisions in most cases and then reviewing them after an interval—reviewing their own decisions.
If it is right to believe, as we do, that the police should not recommend and approve, then it must be wrong for the commissioners to be in a position of deciding and then reviewing their own decisions. I believe that this is a very serious flaw indeed in the new clause put before the House by the noble Lord. He may not have intended it to have that effect. We shall wait and see. But if indeed he means what he says in this amendment, that alone is a sufficient reason for saying that these proposals do not meet the need for judicial authorisation without introducing another and very dangerous drawback.
I turn to the amendment standing in my name, put down in Committee but not then pressed to a Division. I say to those noble Lords who have not previously
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given their mind to this very difficult matter that it takes nothing away from the fight against serious and organised crime to which this Bill is mainly addressed. It does not deny the need for electronic surveillance for bugging. (It is an ugly word for an ugly deed.) It does not deny the need for this in the fight against crime. It does not oppose giving statutory form to a practice previously regulated only by Home Office guidelines.
The amendment is clear, it is simple, it is narrow. It says that if we are to incorporate into statute law the right of the police to bug our homes, a judge should make that decision. I well understand that in drafting the Bill Ministers on advice believed that it was reasonable to incorporate into statute arrangements which they understood had already worked well. I make no heavy-handed criticism of Ministers on that point. However, we all caught up with the full implications of this matter in our debates in Committee. Six weeks have since elapsed, and I am sorry that there has been no ministerial change of heart on the essential central principle of judicial authorisation.
The first argument against judicial authorisation was put by the Minister herself on Second Reading on 11th November. She said:
"There is the danger of the judiciary becoming too involved in the investigative process and of its impartiality being called into question".—[official Report, 11/11/96; col. 837.]
This seems so improbable that Ministers were asked whether consultations had taken place with the judiciary to determine this point of view. The reply of the Minister in her letter dated 18th December, which she placed in the Library, was this:
"We have taken account of what several judges who have been involved in this type of work have said".
However, I am not quite clear what type of work that is, as judges have not been authorising bugging hitherto. It seems a very casual and flawed way of approaching such an important and sensitive matter. With the passing of time the argument of impartiality has receded. It does not really stand up; I believe that Ministers know that it does not.
There is then the argument that judges are busy people and do not have the time. They are certainly busy people, but as the noble Lord, Lord McIntosh, said, there are 500 circuit judges in England and Wales; there were 1,300 police authorisations in 1995, and indeed there were 2,100 throughout the United Kingdom in 1995, including those recommended by police and customs officers. This means, as the noble Lord himself said, fewer than three authorisations per head, which hardly looks like an intolerable burden, although obviously, and I concede this, the load would not be so evenly spread and some judges would have a considerably heavier load than others.
What I do not understand, but the noble Lord, Lord McIntosh, may return to it at a later stage, is why the circuit judges are expected to develop some special expertise. The recommendation will come to them. There will, I hope, under the proposal in Amendment No. 26, be dialogue between the police and the circuit judges and the circuit judges will make a decision. Although the Minister herself has argued that

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operational experience seems to be relevant, without that being substantiated in any significant way I cannot see how it carries weight.
The third argument is that in an operational matter—that is the expression used by the Minister—the judges will lack the relevant practical experience, which I suppose means experience which the noble Lord, Lord McIntosh, says they will have no time to gain. But, as I said, it is not at all clear why the judges, faced with the recommendation from the police and with the guidelines in front of them, will not be competent to make such decisions.
The noble and learned Lord the Lord Advocate said in Committee that the circuit judges would not have in-depth knowledge of a particular police force. He did not explain why they needed such in-depth knowledge of a particular police force and it may well be that he will do so today. But until that is clear, again I can see no objection of substance to a circuit judge being competent to perform that function.
As for the commissioners, to whom I have already referred, let me say again that it is, in the words of the noble and learned Lord the Lord Advocate, for them to review whether those who have granted authorisations have acted properly. That is entirely retrospective, after the bugging has taken place and any damage has been done. I do not believe that the commissioners can be expected, under the Bill as written, to perform the function of judicial authorisation, which is not what they are there for. But, as I said, I feel that there are grave objections to the commissioners both authorising bugging and then reviewing their own actions, as the noble Lord, Lord McIntosh, would have it.
Finally, faced with the fact of successful judicial authorisation abroad, the Minister said in her letter of 18th December—for which I thank her:
"We understand that such systems tend to be slow and bureaucratic".
But, as the Minister herself knows, that is a cautious verdict. When Ministers say "I understand", it means "I am led to believe but I cannot put my hand on my heart and say it is so. I understand very much at second hand and then it is a view which could still be disputed". But even if that is sometimes the case, there is no reason why we should not do better with a procedure which is both effective and speedy.
The Minister said in her letter of 18th December that:
"given our system and traditions, it would not be right to extend the role of the judiciary in this way".
But one of our traditions—it is a great deal more than that because it is one of our freedoms also—is that an Englishman's home is his castle, as the noble and learned Lord, Lord Browne-Wilkinson, reminded us so cogently at Second Reading. If two traditions conflict, surely it is the freedom of the individual that must prevail.
Very rarely does the Daily Telegraph agree with the Guardian, The Times with the Observer, the Daily Mail with the Financial Times or the Economist with the New Statesman—and there are others. They all say that this Bill as it now stands must be amended to provide for judicial authorisation. But, if noble Lords are disinclined
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to be influenced by the unanimity of newspapers, let me remind them of what their own committee on delegated powers said in its report of 13th November last. Of the powers in Clause 91 of the Bill it said that many of them would characterise them as "a constitutional change". The issue is as important and grave as that.
Perhaps I may just offer one final word. This is a House of Lords Bill. It started in your Lordships' House and has not been discussed in another place. We have a duty—why else are we here?—to send it forward after scrutiny in what we believe is the best possible form. If we amend the Bill there is no conflict with another place. We are not second-guessing the views of elected Members. I hope that Amendment No. 26 will be judged on its merits. I hope that your Lordships' House will choose judicial authorisation. If so, I hope that your Lordships will believe that the amendment standing in my name is the best one to support.
4 p.m.
Lord Callaghan of Cardiff: My Lords, I rather regret that we have had to start this debate on the basis of arguing which is the better of two propositions put forward by the Opposition. So far as I understand it, we have not yet convinced the Government of the essential principle that is involved. That is what I want to draw attention to, while thanking my noble friend Lord McIntosh and also the noble Lord, Lord Rodgers, for putting forward propositions, both of which are worthy of consent. I happen to believe that perhaps the amendment of my noble friend Lord McIntosh is better, but I could cheerfully support the amendment of the noble Lord, Lord Rodgers. Indeed, I go further and say that I could support the Government's amendment. All of them—some are more timid than others—ought to be supported by us all.
But the point of principle to which I return is a very simple one. I do not believe that chief constables should be given statutory authority for authorising the warrants when they intend to commit entry upon the premises of a private citizen. The security services have to secure warrants in order perhaps to intrude on the privacies of an enemy agent, and I do not see why we should give less protection to our own citizens by not requiring chief constables to follow the same rule.
Therefore I see two principles. I am willing to support any amendment by anybody—I do not believe that this is particularly a party matter; as the noble Lord, Lord Rodgers, said, it is a constitutional issue—which will secure first that a person other than a chief constable is required to authorise entry upon private premises and, secondly, that that authorisation should be prior to the event itself. Those are the essential elements to which, in my view, we should seek to convert your Lordships.
I appeal to your Lordships as well as to the Government. The Government have shown a willingness to move. The amendments put down last week were a move in the direction of the public disquiet that has been shown since this issue first came to our notice. I must apologise for coming to this Bill at such a late stage. I confess that nowadays I do not follow

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these matters so closely as perhaps I should. It was not until the noble and learned Lord, Lord Browne-Wilkinson, drew attention to it that I recognised the importance of this matter. It is a procedure that to me is completely novel. That may surprise some of your Lordships. I was astonished to read—the number seems to vary—that 1,300 warrants for England and Wales and 2,000 if Scotland is included are issued every year. I was absolutely flabbergasted to learn that. Indeed, one question that I should like to put to the noble Baroness, Lady Blatch, is to ask how the figures have increased. Does she have figures for previous years? I should be very glad to hear them. The figures for which I ask, if they are available, will show the rate of increase. What has been the rate of increase?
We all understand that serious crime has increased, as has its sophistication. In no way do either of the amendments put forward seek to deny the police the powers that they should have. But in my judgment they do not impede the police in performing their duties and getting the authorisation that is required.
Baroness Blatch: My Lords, I wonder if it would help the House to put forward information which could be used during the course of the debate. When the noble Lord was Prime Minister in 1977-78, there were for England and Wales between 500 and 600 in that last year of the Parliament and there are 1,300 now. So there has not been a disproportionate increase in activity.
Lord Callaghan of Cardiff: My Lords, I shall come to that point later, although there are perhaps some aspects to which I can refer now. To be absolutely frank, I was not aware that guidance had been issued in 1977. I was referring to the fact that in 1967, when I was Home Secretary, I had no recollection of any such warrants being issued. I have no recollection at all. I was certainly not informed that chief constables were issuing their own warrants. So it is a practice that has grown up certainly after 1970 when I ceased to be Home Secretary. I understand that the Home Office was asked what the record was during my period as Home Secretary and, alas, the records could not be discovered. I assure the noble Baroness that I did not take them with me.
It is my profound conviction that the warrants must have started—certainly in any numbers—round about the 70s. I had no knowledge at all that it took place and one of the things which worries me is that the practice did grow up. No doubt somebody went to a Home Secretary—I do not know whether it was a Labour Home Secretary or a Conservative Home Secretary—and said, "This is a very important matter. We must have a warrant to execute it." And he said, "I agree. I have the authority to issue such warrants, as I do for others." My guess, and it is only a guess—I am trying to take the House into my confidence—is that from that a mountain has grown and we are now facing a situation which was totally unknown 30 years ago.
Lord Renton: My Lords, perhaps I may—
Lord Callaghan of Cardiff: My Lords, I shall not give way to the noble Lord. If I give way I shall take
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too long and be sidetracked down all sorts of byways. I want to make an essential point. I hope he will forgive me.
I welcome therefore the Government bringing forward proposals to put this matter under statutory authority. The Government deserve credit for putting it under statutory authority. Indeed, the Government deserve credit for bringing the security and intelligence services all within the mandate of parliamentary authority by putting this matter in the form of statute. I willingly say that to the noble Baroness.
Since my days in the 60s, public opinion has moved very considerably in the direction of more openness and requiring more information. And, fair play to the Government, they have moved with public opinion. We also have to thank Mr. Peter Wright who, with his no doubt exaggerated account of how he burgled and bugged his way across London, certainly awakened me as well as others to what can happen when there is laxity at the head of MI5 and when officers there are not properly controlled as they should be. That is one of the real reasons why the head of the services in all cases should be subject to statutory authority.
The care and intensity with which Home Secretaries consider applications for warrants cannot be underestimated. I see the noble Lord, Lord Carr, nodding in agreement. He has had similar experience in this matter. When I had to sign warrants, both as Home Secretary and later as Foreign Secretary, if I was unsure I would have had discussions with the Permanent Secretary, Lord Allen of Abbeydale. We would sometimes ask the head of the security service for more information and request that he come and see us. I remember particularly consulting Sir Maurice Oldfield. At weekends we would walk around the grounds of the country house which was then conferred upon me in order that we should not be overheard by anyone when discussing these matters. We accepted most warrants, but rejected some after very careful consideration.
I do not know that chief constables have a monopoly of wisdom in these matters. If the security and intelligence services and GCHQ are required to secure warrants before they may invade private premises, why should the police be the only service excused from that responsibility? I cannot see the logic of it. I certainly do not believe that it is wise that we should so exempt it now that the matter has been brought into the public purview. Many of us have learned what we did not know before, and we are proposing to give it statutory authority.
Perhaps I may be permitted one more observation. This weekend I have been engaged in discussions with a number of representatives from countries in central and eastern Europe. I hope this is not far fetched, but let me tell you what they said. We had been discussing their problems on transition to full democracy. We rehearsed all the standard requirements of a democracy—an independent judiciary, a free press, the capacity to change government, all the things that we all know and use on these occasions. But one issue arose which had not been at the forefront of my mind, although it should have been, and I put it now to your Lordships. Gradually

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it became clear that, whoever they were, they all prefaced these essential instruments with one other matter—the importance of having trust restored in the police service. The right to personal privacy, the right to security and the right not to be invaded by the secret police were things they considered a precondition to ensuring that institutions worked.
That is very true. That is not just a truth related to the secret police in eastern Europe. It applies much more widely, although certainly not to the police in this country. The police service knows that I would never think of it in that way. But there must be trust in the police. They must not be given powers which are not in some ways checked and accountable. If you give statutory authority in that way, no Home Secretary—Mr. Howard or anybody else—is going to abuse the powers. But what can we see down the road? Who knows what can happen? By the usage of such powers, the familiarity of such powers, gradually an exceptional case may become a more general rule.
This is a matter of the utmost constitutional importance. I will cheerfully vote for my noble friend's amendment. I could even be persuaded to vote for the amendment of the noble Lord, Lord Rodgers, because I believe that even the slightest protection in this field is better than nothing. As there is argument about what is the best way to give protection, I hope that the Government will undertake to review these matters most carefully before the next stage is reached in the Commons where this matter will undoubtedly come up again. I hope most sincerely that the conclusion is reached that a chief constable should be accountable to someone for what he is signing and that he should have prior authorisation, as every other service has to have, before doing so.
4.15 p.m.
Lord Gisborough: My Lords, the police are fighting an increasingly difficult and often dangerous battle against increasingly sophisticated criminals, including the whole gamut of hackers in information technology, and they need all the available techniques to help them establish evidence and effectively carry out investigations. This Bill contains the vital provision of intrusive surveillance which will help the police fight crime.
Intrusive surveillance is a covert intelligence gathering technique which the police and security services have been using for years. They have been able to use these facilities through common law where courts have upheld the admissibility of evidence derived from such activities. The Home Office has strict guidelines about how the practice should be conducted.
The Security Service Act 1989 formally established a procedure and clearly placed into statute how intrusive surveillance could be carried out by the Security Service. The Police Bill is intended to bring in a statutory authority for the police.
Intrusive surveillance involves searches and specialised surveillance methods concerning property such as cars and premises. As part of an inquiry the police may need to track a suspected stolen vehicle or
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monitor thieves returning to a garage full of stolen property. The law regarding admissibility of evidence often means that the police have to have proof of the criminals actually committing an offence. Clearly, where serious organised illegal activities are concerned, sophisticated and up-to-date procedures are needed by the police to catch the cunning criminal.
The Bill seeks to enact a formal system of authorisation for police use of intrusive surveillance. It provides for an independent commissioner to oversee the activity, ensuring that the police are accountable for their actions. Currently the police carry out such surveillance methods with the authorisation of a chief police officer in accordance with the Home Office guidelines. However, that may put the police at risk of civil trespass and possibly, in some cases, criminal damage or theft. The Bill will remove those risks. The commissioner will review all applications for the use of surveillance and deal with any complaints from the public. The code of practice, together with standard application forms, will ensure that surveillance is carried out to high professional standards, with a full explanation of why the authorisation is necessary and why other techniques are inappropriate. The checks and balances needed to ensure consistency and fairness will therefore be in place. The material gathered from intrusive surveillance will be used for intelligence purposes and can be submitted as evidence in court.
During the passage of the Police Bill two specific issues have arisen. I should like to comment on them. They are the issues of who should authorise the warrant permitting the surveillance, and where or who may be subjected to it. First, I should like to deal with the issue of the warrant. There are three potential authorising bodies; namely, the judiciary, the executive and the police themselves. The judiciary have expressed the view that they should be the authorising body. However, intrusive surveillance concerns the gathering of intelligence and evidence. To involve the courts at this early stage of an inquiry could be perceived by the public as compromising their impartiality. In addition, the judiciary are experts in the law and not necessarily in the operational practicalities of policing. The judgment of whether or not to allow intrusive surveillance involves the operational experience of a chief police officer to which the judiciary do not have access.
The option of ministerial warranting would introduce an independent element into the decision-making process and would be similar to the current practice of the Security Service. However, Ministers becoming involved in the operational decisions of the police could be perceived as interfering in their independence. The Security Service is directly accountable to the Home Secretary but the police are not. It is also of concern that quick decisions in urgent cases may not be possible because of the administration required in applying to the ministry.
Let us consider the option of placing the authority with the chief officer of police. He or she is the person with the operational experience to decide whether or not the intrusive surveillance is appropriate. A chief officer is readily available, and in urgent cases it is proposed to

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allow an officer of ACPO rank to make the authorisation. This ensures that the judgment to permit the surveillance to go ahead is made at the highest level. In my opinion, the appropriate authority to undertake intrusive surveillance should come from the chief officer of police, as the Bill proposes.
Secondly, I should like to deal with where and on whom such surveillance should take place. Highly organised criminals will take advantage of any legal way of avoiding being caught. Their knowledge of our legal system is often very good and any loopholes or exemptions are taken advantage of. It is clear, therefore, that any exemptions made, whatever the circumstances, will offer the criminal the means of continuing to conduct illegal activities and to make profit, particularly from those in society who can least afford it. Therefore, the use of the surveillance should be applicable to all premises.
It may be that the press has reflected the concerns of members of the legal profession who believe that the use of surveillance within their chambers and offices will undermine the right of people to consult their lawyers in confidence. However, the police are accountable for their actions to the judiciary and will have strict Home Office guidelines to follow. Furthermore, I believe that criminals would exploit those premises if they were exempted.
In conclusion, I believe that the Police Bill should be given our full support if the police are effectively to combat serious organised crime which poses a real threat to the fabric of our society.
Lord Browne-Wilkinson: My Lords, I wish to say a few general words before reaching the question of who should authorise the covert surveillance proposed in the Bill.
There is no doubt, either in the House or throughout the country, that the police need special powers to use electronic and other means of surveillance in dealing with serious organised crime. That is not the issue. I thought until this morning that it was agreed that at present the police have no power to enter, bug or steal from the property of the private individual. Perhaps the ignorance of the noble Lord, Lord Callaghan, of these processes during his time as Home Secretary was due to the fact that the activity was unlawful and is today unlawful. There has been, to my mind, too free a use of euphemisms, like "administrative procedure", which have concealed the fact that, possibly not to the great credit of this country, we have been tolerating a system of unlawful interference with the freedom of the individual for a long time.
I say that I thought that was clear—it has certainly been the basis on which discussions have been going on in this House and elsewhere—but this morning I happened to hear the "Today" programme in which the Home Secretary said that the Bill was not designed to confer new powers but merely to regulate powers which have been in existence for a long time. That is rather an important matter because my objection to the Bill has been throughout that it was eroding and cutting down
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individual freedoms which currently exist without sufficient cause being shown. If, as was said this morning, the police already have these powers, then I would take a different view. It would be entirely a beneficial regulation of existing powers. I would invite the noble Baroness, Lady Blatch, at some stage—I am not saying now—to confirm one way or another whether it is the Government's view that entry by the police onto private property or the seizure of private property without prior court warrant is currently lawful. My understanding—and, I believe, the understanding of the overwhelming majority of people here, both lawyers and others—is that that is not lawful and has never been lawful and that the Act will legalise it. The question is: on what terms should it be legalised?
It has been said, and rightly said, that this is a constitutional issue. I do not wish to take time on this point—I have said it before but there appear to be rather more people present today than there were previously—but our freedom in our home, in our premises and in our property depends entirely on judicial decision of common law. The famous case is Entick v. Carington. It established that the police, the military or any organ of government have no greater right to enter our property than has any private individual. That is the sole constitutional right we have to prevent the state interfering with our lives in relation to property. That is the bastion of our constitution. It has been adopted by all other common law jurisdictions as the bastion of their freedom. If that freedom is to be taken away, it is my view that the clearest possible need has to be demonstrated for that to be done and the biggest possible safeguards placed to protect our freedom.
This Bill does take away those rights. It is bound to do so because to the extent that the powers are needed to combat really serious crime, such as organised drug dealing, money laundering, white collar fraud, obviously we lose part of our freedom. But this Bill goes so much wider. It is not serious crime in that sense. Most of your Lordships are probably aware of the fact, which has never been controverted, that theoretically the actions of the Newbury bypass protestors, being the actions of a large number of people in concert to cause a breach of the peace or an obstruction of the highway, constitute serious crime within the meaning of this Bill.
Those are people who could be bugged and burgled. Likewise, it is assumed that the people in whose property these bugs are placed are the villains, the suspected villains, the "druggies". Not so. The powers under this Bill authorise the taking of action in relation to any property within the area if the chief constable is satisfied that it is necessary for the prevention or detection of crime. So the bug can go into your Lordships' House, my house or my lawyer's offices, the journalists' offices, our employers' offices and so on, provided that the chief constable has seen a link with something. Therefore the intrusion is not just on the villains' privacy but potentially on everybody's privacy: I am not saying this is going to happen all the time because of course it is not. What I am saying is that it seems to me we have to try to prevent that happening.

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I will not go into further detail because I have already taken too much time anyway. What has always been the guardian of individual freedom as against the proper requirements of the state to interfere with individual freedom has been the judge issuing the warrant, a prior authorisation by an independent party. Somebody said that judges were keen to have the job. I suspect if I took a poll there would be a 100 per cent. answer: "We are not in the least interested in having the job."
What is needed is an independent person; not the policeman anxiously and properly doing a job, but an independent person to strike the balance as to where the impairment of freedom is justified by the need, in that case, to interfere with it by bugging. That is what both these amendments are designed to achieve. I find it unhappy that we have two aiming at exactly the same target and hitting with what appears to be double vision two rather separate ones. For myself, I would pay tribute to the noble Lord, Lord Rodgers. Ever since this matter was raised—not, if I may say so, by me but by those two admirable organisations, Justice and Liberty, for whom I was merely a voicepiece—the noble Lord has fought this battle as a matter of principle. I believe that he has fought it on this amendment to reach a good conclusion. You have a simple requirement for prior judicial warrant, easy to operate and easy to get there.
However, in substance the Labour amendment now before your Lordships achieves largely the same result in the sense that you have an enlarged body of commissioners; they are all judges or ex-judges; they have to give prior consent before the invasion takes place. I hope that, if it is accepted, the Liberal amendment might be tidied up in one respect. It is my understanding—that perhaps is the euphemism which means "I don't believe it to be true". I take it back. I "believe" that surveillance can now be carried on through listening to what is happening inside a room without any physical entry on to the premises at all; some magic by way of vibrating windows and so on, transmitting. It has to be pointed out that the Labour amendment will not require prior authorisation for such type of surveillance because it does not involve interference with the premises. I would be unhappy to see that position, but that is a minor point.
The substance of the matter is that both amendments require prior authorisation, which to my mind is the only true defence against the enormously wide powers which are sought in this case. Without it, I believe that we are suffering a serious erosion of our constitutional rights. I have been accused of inventing one platitude,
"an Englishman's home is his castle".
I would merely conclude with another platitude which I have not invented but which, like all platitudes and all truisms, is true:
"The price of freedom is eternal vigilance".
Unless every attempt to take away individual freedom is looked at carefully we will not have freedom. I would invite your Lordships to vote for either or both of these amendments. I have no idea what is going to happen in due course.
Lord Hutchinson of Lullington: My Lords, surely all Members of this House would have to agree that
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neither here nor in another place is there any possibility of having heard a more persuasive or more authoritative speech than the one we have just heard from the Cross Benches. Like the noble Lord, Lord Callaghan, I had no intention of intervening until I heard certain comments and later read some of the observations made by the Minister and also by the noble and learned Lord the Lord Advocate, literally at Committee stage. They made my blood run cold and I still cannot believe that they both seemed to be entirely oblivious of the dreadful implications of what they were saying. Perhaps with some long experience in the criminal courts of England I might be able to point out the implications of what was said by the Government at Committee stage.
I will refer only to two passages. The first is at col. 837 on the 11th November where the Minister said:
"Intrusive surveillance is used at an intelligence gathering stage. It may also be important to conceal that it has ever taken place."— [Official Report, 11/11/96; col. 837]
The noble and learned Lord the Lord Advocate at col. 225 on 26th November said this:
"the accused … may be prosecuted and convicted in court without anyone being aware of the existence of the authorisation … it would be of the utmost importance to keep the existence and use of authorisation absolutely secret."—[Official Report, 26/11/96; col. 225.]
What does this mean? It means a totally secret intrusion, either physical or electronic, into the house of any citizen by agents of the state, the police—whenever and wherever the police, to quote the clause—
"think it necessary for the detection of any offence serious enough to carry three years of imprisonment."
The words "secret" and "police", here writ large without exaggeration in an Act of Parliament, appear to be the advent of the secret police; the Big Brother has at last arrived, with the Orwellian presence behind, of the surveillance commissioner. What are the implications of those words? They mean that any person can be tried, convicted and imprisoned on a case based on information about which the judge, the jury and the advocate will know nothing, which might be information which was utterly mistaken, utterly false and indeed, one may say nowadays, utterly corrupt. Suppose the identification was a mistake or the name of the person was a mistake; suppose the substance being discussed was not a drug at all? The foundation and the origins of the prosecution would be built on a mistake or dishonesty; and of course there are cases where people are, to use the jargon, specifically "set up".
Two basic reasons have emerged for the spate of miscarriages of justice over the past 10 years. One is the fatal process of the police suspecting a person of having committed an offence and then building up the evidence to support that suspicion. The other, as we all know, is the unscrupulous, over-zealous or dishonest police officer who gives evidence of false confessions.
The noble and learned Lord the Lord Advocate may have had very little experience of the rough and often brutal realities of the world in which the police operate. There are few Queensberry Rules and the fact that intrusive, illegal bugging has been going on uncontrolled and in secret is, in my opinion, simply a disgrace. It reminds me of the case where we brought

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into daylight the fact that the Crown had been secretly vetting jury panels in all secrets cases in order to remove what were known as "subversives" from the juries which were to try the cases. When that was discovered, the judge ordered a new, "unknobbled" jury to be sworn in, and the matter was then regularised. It also reminds me of the certificates, to which we shall refer later today, signed by Ministers to suppress evidence and to keep evidence secret—that being blown open by the circuit judge who tried the case, and by Scott. That matter has also now been regularised.
We must also face up to the realities of the on-going programme which has existed throughout my career as an advocate, of corruption in the major police forces, such as the Metropolitan Police force and, as my old friend the noble Lord, Lord Knights, will know so well, in the West Midlands and North West too. We must be a little careful when assessing those paragons of virtue who have, to use the words of the noble and learned Lord the Lord Advocate, passed exams and faced selection boards and who, under this Bill, will authorise intrusions.
It is said that the police will not target people who are not criminals. But who are criminals? Criminals are people the police think are criminals. Was Robert Maxwell a criminal? Members of this House worked happily for him, so would we have had bugs throughout the Palace of Westminster? Let us consider the Official Secrets Act. Were those seemingly respectable clients of mine, Mr. Blake and Mr. Vassal, criminals? No doubt they were, but what of my later clients who were charged under the same section and sat in the same dock at the Old Bailey, the editor of the Sunday Telegraph and later the future editor of the New Statesman, both with many friends in this House and in another place? Would there have been bugs in the Palace of Westminster? What of Mr. Anthony Blunt—no better place to hatch a plot than within the protection of the Titians in Buckingham Palace? And there can be no exceptions for the placing of bugs, we are told.
What about the political implications of the clause? Surely this lies close to the heart of the Labour Party. The protesters involved in the miners' strike, the protesters against the poll tax and those at Greenham Common and at Newbury would all be criminals under Clause 91(5)(a). We are not very far from the original Wilkes case involving sedition and the security of the state.
What about the nightmare of the secret police, the listening in for one thing but hearing a lot of other things? What happens if the police listen in with a view to discovering a drugs offence but then discover an offence relating to pornography, sex or tax evasion? What is to happen to all the information obtained by using these bugs but which has no relevance to the original reason behind the use of the bugs? Will the Minister tell the House what is to happen at a trial when an advocate asks a police officer, "Did you bug my client? If so, I wish to see the tape and I want to know the dates and the times". Is the police officer to lie to the court in order to maintain that essential secrecy?
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People with previous convictions need the protection of the law although they are described by the Home Secretary as "criminals". They often come to one to seek advice, saying, "I am going straight. I have a business. I have been turned over three times by the police. What can I do to protect myself?" Some of the most serious miscarriages of justice have involved such people.
I turn now to the role of the surveillance commissioner. As the noble and learned Lord said, the question is: are the police to authorise themselves? The commissioner's intervention is triggered by a complaint. If an operation is secret, there can be no complaint. Surely that highlights the inanity of the commissioner's role! Once this clause is part of the law, how can the commissioner say that the police acted illegally or improperly if the police officer genuinely thought that the intrusion was necessary? The commissioner will be bound by the words of the statute.
I turn finally to the issue of the judicial warrant. We have been told by the Minister that judicial warrants are in quite a different category from what is required in other cases because they always follow the commission of an offence whereas we have been speaking of the build-up to an offence. That is simply wrong. There are in existence a whole raft of statutes, including warrants, to see whether an offence is being committed and, in many other cases, to prevent an offence being committed. It is simply not the case that the procedure exists only once an offence has been committed. Such procedures are there to discover whether, for example, a child is being ill-treated, whether indecent photographs are being taken, whether the documents in question relate to a transaction involving drugs which, if carried out, would be a drugs offence, and, above all under the Official Secrets Act, whether an offence is about to be committed. The circumstances of an offence can hardly be more serious than those in which the police have to obtain prior judicial authority when it is a question of the safety of the realm. If the police are uniquely qualified to authorise intrusions for the gathering of evidence, one must ask why on earth we have judicial warrants in all those other cases across the criminal process.
In all the years that I have been a Member of this House, I can think of no decision more important than that which we have to take today. The noble and learned Lord the Lord Advocate said these chilling words in Committee:
"it is necessary … to move the show on from what we have traditionally regarded as inviolate".—[Official Report, 26/11/96; col. 227.]
Surely this House has the wisdom and the good sense to know that some traditional principles which guard democracy and freedom are, in fact, inviolate.
Lord Carr of Hadley: My Lords, like noble Lords in every part of the House, I fully accept that special powers of the kind about which we are talking today must be given to the police. It is regrettable, but I believe that it is a fact that we must face. The whole question is how those powers should be given to the police.

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Like the noble Lord, Lord Callaghan—whom I followed as Home Secretary four or five years later—I, too, was ignorant about what was going on. I was astonished when I saw figures of 1,300 and even higher quoted in what appeared to be reasonably authoritative reports. I can only assume that what was going on was unlawful. I find that shocking. I am also shocked that I did not know about it, but that is another matter which for the moment I do not want to press. I am grateful to the Government for the fact that they have taken the initiative in making lawful that which was unlawful so that at least the unlawful work can stop. But I cannot agree with the way in which they propose to do it.
I welcome the substantial amendments tabled by the Government. Like the noble Lord, Lord Callaghan, I do not disagree with them. However, they fail to get to the root of the problem. I have great difficulty in knowing what I should vote for, but I know what I must and will vote against. I must vote against the police being given greater authority to do these awful deeds—which I agree they must have authority to do—by anything other than judicial authority. That is an absolutely fundamental point. If we went the other way we might not regret it in three or four years. But perhaps 20 years from now our successors will look back and regard our allowance of the provision as something of which we should be thoroughly ashamed.
I believe that the House has a difficult decision to take. Do we really have to make a final decision today? If I have to vote for one of the amendments, on the whole the amendment of the noble Lord, Lord Rodgers, convinces me more than the Labour amendment, simply because of the practicalities: the number of cases involved and the need to get a judicial opinion quickly without too many exceptions as permitted in the Labour amendment.
However, I would rather not make a final decision today. I am far from an expert on procedure; I must be one of the greatest inexperts in the House. I understand that the House has very flexible methods of procedure and that it can do things which can never be done in the other place as late as Third Reading. Is it not possible between now and Third Reading to have all-party consultations to try to arrive at a proposal that is acceptable to all? I honour what the Government are doing but I shall vote against it because I must vote against anything that permits authority to be given other than in a judicial manner.
Lord Marsh: My Lords, perhaps I may intrude a dissenting note into the debate. I become increasingly worried about the tone of some of the speeches that have been made. I yield to no one in this place in being very proud and relieved to live in a tolerant and stable democracy. It follows from that that the authorities in the nation, of whichever party or government, have to be watched. The organs of state power must be constantly watched, whether they are the Army or the police. All evidence indicates that when that is not done democracy is at risk.
But the speeches that I have heard paint a picture of a nation that is faced with a major threat from the police. I am not so worried about the police. From time to time,
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there are bad eggs who usually finish up serving a very unpleasant period in gaol, and rightly so. I have no quarrel with that. I recognise also that there are bad eggs in the legal profession. In a rhetorical question the noble Lord asked whether Robert Maxwell was a criminal. I am not qualified to say whether or not he was, but I am convinced that if he had come to trial there would have been a queue of advocates prepared to swear that he was not.
We now face the problem of sophisticated crime which enjoys the patronage of whole governments and financial resources from drug dealing. I am very worried about three particular problems. First, I am worried about organised international drug dealing which controls whole governments in parts of the Far East and South America. During Christmas and New Year I was in the Far East. In the so-called golden triangle one is not dealing with small groups of criminals but armies of 25,000 men under arms and governments that are totally and completely in the pockets of dealers of considerable sophistication and wealth. I am also concerned about terrorists. Our domestic terrorists used to be located in Northern Ireland, Eire and the UK mainland. Their activities are now worldwide. They are frequently trained by other nations, for example, Libya. The third leg of the threat is international money-laundering.
I recognise that one has to surrender some traditional values. With the greatest respect to the noble Lord, Lord Callaghan, under whom I had the honour to serve when he was Home Secretary, the world has changed since those days. If anyone had suggested during that period when Labour was in government that the City of London would be surrounded by a ring of steel it would not have been accepted. In those days school children stood outside No. 10. There are now steel gates and armed police outside No. 10. I had never seen an armed policeman until the 1960s. Today, if one goes to Gatwick to take one's kids on holiday one sees the place full of policemen carrying sub-machine guns. That situation is reflected throughout the entire world because major crime today is different. This Bill is concerned with direct challenges to the state, not burglars or those who steal car radios or petty criminals. To deal with that the police must have powers to combat it.
Lord Callaghan of Cardiff: My Lords, no one is saying that they should not have such powers.
Lord Marsh: My Lords, the noble Lord, Lord Callaghan, says that no one suggests they should not have such powers. I totally agree with him. The noble Lord, Lord McIntosh, summed it up very well in a letter to the Guardian in which he said that the difference between us was whether the police should have to seek prior support or authority for the actions that they took. That is a very narrow and clear issue. I express it in terms of accountability. One cannot manage any operation efficiently unless the people who take the final decision are clearly and absolutely publicly accountable. One cannot hold those people accountable if they are second-guessed by someone else. The judges have powers and roles that are crucial, but on the whole they do not have operational experience. They have not been

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involved in exercises that may have taken place over weeks, months or even years in great detail and complexity; nor do they have the feel for it. If we have lack of faith in police officers at the level we are discussing then we should look at a complete reorganisation of the police force. We cannot expect to have proper policing if, against the resources with which those people are now faced, and in such circumstances, they have to keep asking a judge, "Is it all right if we take the next step?"; and the judge may well be wrong.
I apologise for interrupting this tirade about the police. To return to my opening point, I share all the worries, desire and jealousy of the society in which we live. Our society is under threat as never before from internationally financed and organised crime on a major scale. The days of Dixon of Dock Green are long gone. We are now forced to take another step.
It is said that we want to protect our privacy. Every time I walk through an airport I have my luggage X-rayed and my hand baggage searched. I am personally searched, and when returning from the Far East the chance of being searched for drugs is even higher. We all accept that—not because we want to, but because that is the reality of modern life. If we ask police and Customs officers to risk their lives and fight this battle, let us not tell them that they may do it only if they seek judicial authority from someone who carries no responsibility for the operation and has never been involved in operational activities before they can take the steps they believe are necessary.
5 p.m.
Lord Mishcon: My Lords, the noble Lord, Lord Marsh, is known and liked in this House for his eccentricity. I most respectfully point out to him on behalf of the very respectable profession to which I have the honour to belong that it is not a habit in our criminal courts for advocates to swear as to the innocence of their clients—
Lord Marsh: They imply their innocence.
Lord Mishcon: I promise the noble Lord that, in the unlikely event of his appearing before any court, civil or criminal, he will appreciate the services of the advocate who appears on his behalf in order to present the best case that he can. That is an advocate's duty.
It has already been said, by way of slight interruption to the noble Lord's remarks, that nobody has so far advanced a case for the non-inclusion of the rights of the police such as we are discussing. Therefore, to tell the horror story of what would happen if these powers were not given does not exactly help the debate.
Lord Marsh: My Lords, I apologise for interrupting the noble Lord. I obviously did not express myself clearly. As I said in answer to an interjection from the noble Lord, Lord Callaghan, I make no argument that
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police powers are being restricted or blocked. I am simply saying that, very narrowly, the argument relates to whether the authorisation should be after or before.
Lord Mishcon: My Lords, I appreciate that point. However, I say most courteously that had the noble Lord merely uttered the last part of his remarks instead of the first part, I should have had no complaint. The first part was directed to the horrors that now exist and surround us in this country which make these powers necessary. Unfortunately I have to agree with him, like everyone else who has spoken, that the House must determine whether or not the police should have powers which presumably they have exercised without the knowledge of two very fine Home Secretaries whom this House is privileged to have in its midst. Both noble Lords said that to their horror these powers were exercised without the necessary statutory authority.
The wording of Clause 91 is slightly relevant to that point; namely, that,
"No entry on or interference with property or with wireless telegraphy shall be unlawful if it is authorised under this section".
The positive is not put before the House; the negative is. It shall not be unlawful. Is that a hint of the acknowledgement that up till now—and the cases are many—the powers of the police have been exercised unlawfully, as the noble and learned Lord said, and without the knowledge of the Ministers responsible for such measures? Does that not indicate that something has gone terribly wrong with the way in which administration has been carried out? If that practice has been going on, to the horror of two past Home Secretaries, is it not our duty to see that at least in future things go right and are under proper control and supervision?
The answer given by the noble Lord, Lord Marsh, and others—a point that has to be faced—is: do judges have sufficient experience of operational matters to be consulted and give their sanction before orders are made? I cannot see that argument coming from the Government Front Bench, if only because they are the people who say that commissioners should not be ex-policemen but High Court judges. They are the people given responsibility by the Government for review. What are these poor, inept people who know nothing about operational matters doing reviewing the decisions of those who do know? I therefore have some difficulty accepting that argument.
We have a difficult task, one which, as the noble Lord, Lord Callaghan, said, most Members of this House find embarrassing. The embarrassment is this. I believe that every one of us would say that we have to impose some control on this power. I am so sorry to concentrate on the noble Lord, Lord Marsh, which is not really fair; however, he spoke in terms of accountability. He said with great emphasis that it is accountability that is important. The Minister nods her very comely head. I am afraid I do not understand the reason. Where is the accountability? It will all be done in secret. Nobody will know about it unless there is an application for review. One does not know how people will ask for a review if the whole matter is so secret; however, that is another point. How in the name of heaven is accountability to

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come about unless it is in front of a commissioner or a judge of some status? Where will the question be asked? In this House? Are we to know? Even Home Secretaries have not known in the past. Ordinary Members of this House will not know. Where is the accountability?
Most of us, honestly and frankly I believe all of us, consider that there must be some proper limitation. The tragedy—and I say that advisedly from the point of view of every noble Lord who treasures the liberties that we enjoy in this country and who does not want them impaired—is that we are faced with two amendments. That is a tragedy. The way out, which, I hope, will give the Government cause for second or third thoughts, is to vote for both amendments. That is the way to show to the world at large, which otherwise will not understand, and to another place, where this House stands when liberty is at stake.
Lord Rawlinson of Ewell: My Lords, I shall detain the House for a very short time. I have never been in the ranks of hostility to the present Home Secretary. In some of what have been described and portrayed as disputes between my friends the judges and the Home Secretary I have at times been surprised by decisions that have been made by my friends the judges. I have never been hostile to the Home Secretary: some of the hostility has become personal and sometimes rather disreputable. On this occasion, however, I am sure that the Home Secretary is wrong.
I will not engage in the histrionics that we have heard from noble Lords on the Liberal Democrat and Cross Benches. I ignore all histrionics, but I believe that we must get this matter right. The priority must be liberty. It must be that prior authority should be given; and it can be given only by the independent branch of our constitution, the judiciary.
5.15 p.m.
Lord Lloyd of Berwick: My Lords, I too welcome Part III of the Bill. They are powers which undoubtedly the police need for all the reasons which have been given. However, with police bugging running at 1,300 operations a year—a figure which surprised me as much as it surprised the noble Lord, Lord Callaghan—it is high time that something was done. There can be no doubt that each one of those operations involved an unlawful trespass on private property. They were no less unlawful because they were carried out, I have no doubt, in accordance with Home Office guidelines. Home Office guidelines are admirable and very welcome, but they cannot change the law.
Police bugging should have been put on a statutory basis as long ago as 1985 when telephone tapping was for the first time put on a statutory basis as a result of the decision of the European Court in the Malone case. The analogy between telephone tapping and placing a bug in the telephone itself, or in the room, or wherever, is obviously close. It is an analogy which I hope to develop briefly.
I do not wish to appear to be in any way grudging in my support of Part III by suggesting and hinting that it is long overdue. Particularly welcome is the provision
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that the product of a police bugging operation will be admissible in court to convict the criminal. I can see no conceivable point in using these processes to detect crime if we do not also use them to convict the criminals once they have been detected. Therefore, I am all the more depressed that the Government have not taken this opportunity to amend Section 9 of the Interception of Communications Act which forbids the product of the telephone interception to be used in court. What possible difference can there be between a conversation which is intercepted on a telephone and a conversation which is intercepted in a man's own home? Why should one be admissible in court and not the other?
I do not expect the Minister to deal with that point today. I hope only that it will not be overlooked because it is important. I mention it now only in order to emphasise the close connection between the two methods of intercepting conversations. Therefore, so far I entirely support and welcome Part III of the Bill, but I am afraid that that is as far as I can go. I cannot accept that it is right for one police officer to authorise another police officer to enter our homes, no matter how senior the first police officer may be. I still have a sense of wonderment that any of your Lordships can accept that principle because it seems to cut across so seriously one of the basic concepts of freedom.
One can test the matter in this way. Let us suppose that in 1985, when the Interception of Communications Act was passed, the Government had proposed that one police officer should be able to authorise another police officer to intercept our telephone calls or to open our correspondence. Such a proposal would have got nowhere. In 1985, Parliament required—and rightly required—that each new telephone interception required the authorisation—and the personal authorisation—of the Home Secretary of the time. I can say from my experience that that is a responsibility which every Home Secretary since 1985 has taken very seriously.
What has changed? The definition of "serious crime" in the Bill is exactly the same as the definition of "serious crime" in the Interception of Communications Act. The need to do something about organised crime by every legitimate means is no greater now than it was then. So why is it that telephone tapping requires the independent personal authorisation of the Home Secretary but bugging does not? Can it really be said that the intrusion into our homes and the opening of correspondence—once the police officer is lawfully in our homes he will be able to exercise all his powers of search under Section 19 of the Police and Criminal Evidence Act—is in some way less serious than the interception of our telephone conversations? Clearly, it cannot. I ask again, what is the difference?
I do not suggest that the Secretary of State should himself authorise police intrusions. I do not see how he can. As we have been told, they are running at a rate of 1,300 a year. What will probably surprise the noble Lord, Lord Callaghan, is that the number of warrants now issued by the Home Secretary under the Interception of Communications Act is just below 1,000. To be precise, there were 997 in 1995. Therefore, the Home Secretary has got enough on his plate in ensuring that the Interception of Communications Act is properly

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complied with and that warrants are properly issued, without troubling himself also with police intrusions. No, I would not suggest that, because the solution is such a simple one; it is the solution which is proposed by the noble Lord, Lord Rodgers, in his amendment.
It seems that the Government have some kind of difficulty about prior judicial authorisation. I have read the debates and the correspondence subsequently circulated but I am quite unable to see what the difficulty is. Obviously there needs to be secrecy, but there is no problem there. My own solution would be that authorisations in London would best be granted by the chief stipendiary metropolitan magistrate, in Scotland by the sheriff of Lothian and Borders and elsewhere in the United Kingdom by a designated circuit judge. That is what happens in every other country which I visited during the inquiry I carried out into terrorism and in every other country of which I have knowledge. I cannot see why it should not be be possible here.
I accept that there will be cases in which there is great urgency; but equally there are cases where there is great urgency in telephone tapping. I can remember many examples where an application has been made by the police, saying, "We must have the answer by tomorrow", and there has been no difficulty. The police make their application; the Home Secretary is a busy man but he finds time to deal with the application personally. If the Home Secretary can do that in the case of telephone tapping, surely the designated commercial judge can find time to do it in the case of police bugging.
What are the other objections? It is said that somehow it would involve the judiciary in operational matters. How could a judge, for example, be satisfied that the police had exhausted all other methods of obtaining the information which they wanted? Exactly the same situation applies under the Interception of Communications Act, yet the Secretary of State is able to satisfy himself that the police have exhausted all other methods of acquiring the information. Surely a circuit judge would be able to do the same without difficulty?
Then it is said that circuit judges should not be involved in the early stages of an investigation because it might prejudice their impartiality at a subsequent trial. To my mind that is the feeblest of all the objections. It has always been the function of judges to stand between the individual and the Executive. It was, after all, the judges who invented the Judges' Rules, which are now replicated in the Police and Criminal Evidence Act. Surely it should not be beyond the wit of man to arrange that the judge who grants the authorisation should not be the judge who presides at the subsequent trial.
In any event, circuit judges are already involved in the early stages of investigation proceedings. Under Section 9 of the Police and Criminal Evidence Act it is the circuit judge who grants access to the so-called special procedure material; and it is that material and that power exercised by a circuit judge which has proved so very useful in the prosecution of drug cases.
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That procedure involves the circuit judge in operational matters and nobody has suggested that that system does not work well.
I should like to take time to mention one point which I know will be like a red rag to a bull to many of your Lordships—namely, the European Convention on Human Rights. It seems to me inevitable that police bugging will be challenged in the European Court, just as telephone tapping was in the Malone case. Indeed, I am surprised that it has not been challenged in some cases already, but I think the reason for that is probably that it was only recently that the Appellate Committee decided that the product of a police bugging operation was admissible in evidence. Whatever the reason, it seems inevitable that this legislation will be challenged and almost inevitable that, if it is challenged, it will fail the test under Article VIII of the convention. There will be no chance of our derogating from the convention as we were able to do in the case of police procedures in Northern Ireland. The result will therefore be that sooner or later—sooner rather than later, I suspect—this Bill, if passed in its present form, will come back for amendment. What sense does it make to pass a Bill now which we can say will be doomed under the European convention?
I now come to the amendments. I say nothing about the government amendment since it achieves nothing. As for the amendment put down by the noble Lord, Lord McIntosh of Haringey, it has the great merit of requiring prior authorisation. However, my criticism of it is that it is too complicated and in some ways almost too clumsy. It adds yet another bureaucratic layer, while the alternative is so simple. I do not know what these commissioners will cost, whether they be one or three—they will not come cheap—but I do know that a circuit judge will grant an authorisation for nothing. Surely it makes sense that the circuit judge should grant the authorisation and that the commissioner should be held in reserve, as was the position with Lord Justice Stuart-Smith in the case of the Security Service Act or my noble and learned friend Lord Nolan in the case of the Interception of Communications Act, to see that the legislation is being operated properly. Indeed, the commissioner might even hear an appeal if the circuit judge has refused an application from a chief commissioner.
I hope to have the opportunity to vote on the amendment of the noble Lord, Lord Rodgers, which seems to me to be the simplest, cheapest and most obvious answer to the problem. I still nurse the hope that all the Opposition parties, as well as some Cross-Benchers and even some Members on the Government Benches, might unite behind that amendment. It would not mean that we were being soft on crime; this has nothing whatever to do with being soft on crime. I fear that, if we pass the Bill in anything like its present form, it will mean that we are being soft on freedom.
5.30 p.m.
Lord Jenkins of Hillhead: My Lords, I believe that the noble and learned Lord, Lord Lloyd of Berwick, has more intimate and authoritative knowledge of these

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matters than any of the three Home Secretaries who have intervened in this debate, including myself. I was very struck by the point which he took—and which the noble Lord, Lord Carr of Hadley, also took—about the apparently remarkable contrast between dealing with telephone tapping and dealing with this matter of intrusive bugging.
I was a little surprised—as was the noble Lord, Lord Callaghan, about another figure—at the number of telephone tapping cases, now at just under 1,000. In my day there were just over 200, but the most determined efforts were made to obtain the signature of the Home Secretary when a case of urgency arose. I remember a poor assistant private secretary of mine being sent down to a remote village at the northern end of Dartmoor late on a Saturday evening in January in order that I might sign the warrant and he might return to London before the Sunday morning. It seems rather extraordinary that in relation to telephone tapping—which is certainly no more intrusive, perhaps less so, than putting a bug in someone's house—this procedure should be gone through. Goodness knows what has been the exact position so far, but in the future it will be done on the ipse dixit of a police officer, and according to the provisions of the Government.
I am glad to take part in this debate, in particular following the speech of my noble friend Lord Callaghan. There was a time when the ministerial careers of the noble Lord, Lord Callaghan, and I were closely intertwined. I believe that I am now the senior living Home Secretary; he is the senior living Chancellor of the Exchequer. Between us we also occupied the number two slots in relation to both those offices. I mention that not for autobiographical reasons but because increasingly, on reflection, I am convinced that while the Chancellor is, while he holds the office, more at the fulcrum of politics, the Home Secretary's work, and particularly the Home Secretary's legislation, lasts longer. The work of a Chancellor is mostly swept away like a sandcastle by the high tide of his successor, whereas the work of the Home Secretary goes on.
On the whole my record is regarded as a liberalising record. I am by no means ashamed of that. But the fact that one cares for the liberty of individual conduct does not—to take up the phrase of the noble and learned Lord, Lord Lloyd—mean for a moment that one is soft on crime. Indeed, I would hazard the guess—the boast, if you like—that majority verdicts in criminal trials (introduced against considerable Conservative opposition, with the noble exception of the noble and learned Lord, Lord Hailsham, who was a sound ally on that) have done more to convict serious criminals than all the innumerable crime and police Bills which Michael Howard has brought forward. That measure was carefully thought out but it quickly became non-controversial, I venture to suggest, because it carried the support of informed opinion. However, I believe that what is here proposed most signally does not.
The peculiar duty of the Home Secretary is to hold a balance between the upholding of the authority of the law and the rights of the individual, and to do that without regard to headlines in tabloid newspapers or
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applause in conference halls at Brighton or Blackpool. Because of a certain fear that perhaps the Home Secretary does not always maintain that admirable balance, it behoves us to be particularly vigilant in this House about the proposal that is before us today. However, our vigilance must be co-ordinated if it is to be effective. We have an amendment standing in the name of my noble friend Lord Rodgers of Quarry Bank which has long been tabled. We believe it to be better and neater, and that it does not confuse the role of the commissioner or commissioners, as a source of prior permission, with his or their subsequent review authority. But what is perhaps still more to the point is that it is clear from the debate so far that the amendment of the noble Lord, Lord Rodgers, is preferred by the noble Lord, Lord Carr, and by the noble and learned Lords, Lord Browne-Wilkinson and Lord Lloyd.
How can we deal with this difficult matter? The overwhelmingly important thing is that your Lordships' House today—if it is so disposed, which I believe that it may be—should give clear notice to the Government that what is proposed by them is not acceptable. How do we deal with this matter? I urge flexible ecumenism between us and the Labour Party. I believe our amendment is better but I am not so convinced of its overwhelming virtue that I cannot vote for the Labour amendment. I shall vote for the Labour amendment and so, I believe, will every one of my noble friends on these Benches who are present today. What I greatly urge my noble friends on the Labour Benches to do is the following. If their amendment is carried, that is well and good. We may have to discuss a little tidying up at a later stage, but that is a clear expression of opinion. Our amendment then falls. But, if a Labour amendment is not carried, I not merely urge, I beg of noble Lords on the Labour Benches, then to vote for our amendment and not to let the—
Baroness Blatch Baroness Blatch: My Lords—
Lord Jenkins of Hillhead: My Lords, I hope that the noble Baroness will permit me to finish. I beg of noble Lords on the Labour Benches then to vote for our amendment and not to let the Government get away with it and to allow the measure to slip through due to a lack of co-ordination. I believe that that would be tragic as regards the merits of this issue. It would also be symbolically damaging to relations between the two parties. I beg Labour noble Lords to do what I shall do; namely, to be ecumenical and each vote for the other.
Baroness Blatch: My Lords, my understanding on advice from the Clerks of the House is that the amendment of the noble Lord, Lord Rodgers, does not fall if the amendment of the noble Lord, Lord McIntosh, were accepted. It is not a consequential amendment, as the noble Lord, Lord McIntosh, pointed out. The amendment does not fall. It is technically possible for this House to vote for both amendments.
Lord Jenkins of Hillhead: My Lords, I am grateful to the noble Baroness for that expository and helpful intervention. Therefore, if the Labour amendment is

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carried, let us still vote for the amendment of my noble friend. Let us sort matters out afterwards. We will have struck a blow, indeed, two important blows. I would be prepared either to discuss what is decided or, better still, to put it to arbitration. We have the most eminent arbitrators in the country here. I should be happy to put the matter to arbitration conducted by the noble and learned Lords, Lord Lloyd and Lord Browne-Wilkinson, or the noble and learned Lord, Lord Bingham, if he desired that. In any event, let us not snarl ourselves up. I shall vote for the Labour amendment, and I hope that Labour Members will vote for ours.
Baroness Carnegy of Lour: My Lords, the noble Lord has not quite sat down. I may have misunderstood this matter, but I thought that the noble Lord, Lord Rodgers, said that the Labour amendment did not involve prior consent to the police, and that when an emergency arose the Labour amendment implied that the police did not need prior consent. Is that what the noble Lord, Lord Rodgers, said?
Lord Jenkins of Hillhead: My Lords, as I understand it, the Labour amendment—this is one of its deficiencies—does not in all circumstances require prior approval.
Lord Walton of Detchant: My Lords, I hesitate to intervene in this debate in which we have heard such a series of eloquent speeches from members of the legal profession and from three former distinguished Home Secretaries. However, it will not have escaped the notice of those who read the correspondence columns of The Times that this Bill is a cause of serious concern to the medical profession. The problem is the following. On the face of it, this Bill would allow a senior police officer to give authority to carry out surveillance on a doctor's premises without that doctor's consent, and to have access to confidential medical records.
Confidentiality lies at the heart of the doctor/patient relationship. Indeed, a doctor who can be accused and found guilty of breach of confidentiality relating to a medical consultation without consent can be called before the General Medical Council, disciplined, and in the last resort could be erased from the medical register.
Confidentiality between doctor and patient in this country, however, is not as rigid as it is in France where, under the Code Napoleon, for example, it is virtually absolute. It does not have the same protection in law as does the consultation between a lawyer and his or her client, because no privilege attaches to consultations between doctor and patient in law in this country.
As a result of concerns in a number of situations, some years ago the General Medical Council introduced, in its guidance to the profession, a number of circumstances in which it was proper that such confidentiality might be breached. For example, if a patient suffering from intractable epileptic attacks refuses to accept the doctor's advice to give up driving, then it is the doctor's duty, after telling the patient that he will do so, to report that individual to the licensing authority.
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In 1983, when I was President of the General Medical Council, I and a number of colleagues had consultations with the then Home Secretary, Mr. William Whitelaw, now the noble Viscount, Lord Whitelaw, over the issues and provisions of the Police and Criminal Evidence Bill. We agreed at that time to recommend to the medical profession that it was proper to breach confidentiality to assist the police in the investigation of a grave or very serious crime. That advice still stands.
Can you envisage a situation where a doctor, being aware that he or she may be having a consultation with an alleged criminal, and having been informed by the police that this is likely, gives permission to the police to bug that consultation? How can it be ascertained that that consultation, and that consultation only, will be recorded by the intrusive surveillance of the police? How can one avoid the situation, for example, where the next consultation in that surgery which is now being bugged, is between the doctor and a 14 year-old girl who is seeking the doctor's advice about abortion? Let us suppose that the officer who is monitoring that surveillance happens to be the father of that particular girl who is seeking the doctor's advice. Of course, the consultation under surveillance is confidential, but if, naturally as a parent, that police officer then goes dashing along to the doctor's surgery and asks him what business he or she had in discussing this issue with his daughter, is that doctor then to be brought before the General Medical Council for breach of confidentiality in that medical consultation?
How can we ascertain or ensure that surveillance is limited to surveillance of transactions or consultations between a doctor and the putative criminal? Of course, I accept wholly that there will be circumstances—exceptional circumstances—in which a doctor may be thought to be dealing in inappropriate or excessive prescribing of dangerous drugs, and the doctor may therefore have to come under surveillance. I wholly understand the reasons why this Bill is now being debated.
On the question of the protection of medical confidentiality, the profession as a whole would much prefer that no such provisions for surveillance of medical consultations were necessary, and in an era of universal trust they would not be, but I accept the need for the police to have these powers. We wish in medicine that such would never be needed in our society, but they will be needed and it is crucial that the medical profession should, therefore, do its best to collaborate with the police and the authorities to enable them to investigate grave or serious crime, as the General Medical Council recommends.
Surely, that is something which should not be subject to the authority solely of a senior police officer. Surely, it is something which must, at the end of the day, be subject to judicial agreement.
5.45 p.m.
Lord Campbell of Alloway: My Lords, on the question of voting may I put in a respectful plea for a measure of sanity? We are grateful to the noble Lord, Lord McIntosh of Haringey, as I am sure the whole

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House is, for his objective introduction. He truly described the fundamental and crucial distinction between the Labour amendments, if I may call them that, and the Liberal amendments. The main objection, as I see it, to the Labour amendments is a question of accountability, of the police revising their own decision, whereas the main objection to the Liberal amendments is the question of the security of the material which is used in the authorisation. They are two wholly distinct types of objection. Of course, if any party, as a matter of tactics, wants to vote with another party there is nothing one can do about it. Everybody can do what they like, but will that be seen as a rational exercise? I ask your Lordships to consider how this may be seen outside this House.
I shall be brief because by this time all the main arguments have been raised and discussed. The issue is a narrow one, as accepted by at least four of the noble Lords who have spoken. The Government's amendments propose judicial scrutiny. The Liberal amendments propose judicial authorisation. That is the difference.
Your Lordships may think that on objective examination the extent to which there is erosion of the common law is justified in the public interest to enable a requisite system of surveillance to operate, and operate speedily and effectively a system which cannot operate without maximum security. The Government amendments propose that a number of former and/or serving High Court judges should be established as a panel so that one might serve as a commissioner to review authorisations, and investigate complaints. The commissioner has effective powers of sanction. He may require a chief constable to justify his decision under cross-examination, albeit under some special court procedure devised to ensure that sensitive information is not allowed to enter the public domain without sanction of the High Court judge.
The point about medical confidentiality is important. I take on board what has been said by the noble Lord that authorisations under the Government amendments will be notified to the commissioner as soon as possible, and in many cases, including legal confidentiality, medical confidentiality and journalistic confidentiality, they must be notified within 48 hours. That may not be wholly sufficient, and it may not be wholly adequate, but it goes some way towards meeting the point made by the noble Lord. The commissioner may quash an authorisation and order destruction of the material.
As to the Labour proposals, they are very near. There is not a wide difference between them. I think the noble Lord used the term that there is an overlap between the Labour proposals and the Government proposals. The objection is that the commissioner would be both authorising and investigating complaints arising from the authorisations. Your Lordships may think it prudent—this was the point made by the noble Lord, Lord Marsh, with whose analysis I so much agree—in these days to rely upon the opinion of more than one chief constable, which supports the Government's proposals as requisite to combat serious crime.
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The essence of choice among the amendments is of an importance which greatly transcends any political affiliation. That is one of the reasons, with respect, why I sought to ask your Lordships to consider the effect of a nonsensical voting exercise. It is not a political matter, even as we approach the hustings. I support the Government's amendments because, as I see it, they afford a maximum security without which this system, which it is common ground is needed, would be inhibited or could not work at all. I am prepared, like the noble Lord, Lord Marsh, to defer to the apolitical advice of the chief constables.
Lord Acton: My Lords, of the two ecumenical amendments, I prefer that of the noble Lord, Lord Rodgers of Quarry Bank. My stance in opposing the Government's scheme, is fortified by that bastion of conservatism, the Daily Telegraph. In a leading article on 3rd January entitled "Will bugging be warranted?", the Daily Telegraph said:
"For the police to enter or bug somebody's home or office is a very serious matter".
The article continued:
"Quite rightly, Parliament has always previously insisted that the use of such sensitive powers should be subject to outside scrutiny before, rather than after, the event. That is how it should remain. The current system for search warrants works well enough. If the police wish to bug someone, let them likewise get a warrant, from either a magistrate or perhaps even a judge".
I must make it plain that I prefer the latter alternative, and advocate that circuit judges, or perhaps certain designated circuit judges, should be the scrutinising authorities. The words I have quoted are powerful words from a powerful, conservative voice. I commend them to your Lordships.
Lord Alexander of Weedon: My Lords, I believe that all of us who support either of the amendments, as I do, would agree that efficient policing is vital. If I had heard any argument which suggested that prior authorisation would be deleterious to efficient policing—that is, policing which I regard as consistent with the liberty of the citizen—then I would hesitate to support the amendments. But I have heard none. Prior authorisation is absolutely crucial. The clue to that view is, to some extent, the very width of the powers.
Once the Bill becomes law, no one, but no one, in this land will be able to be certain that their home will not be bugged. Most of us will dismiss the idea as fanciful and improbable, but we will not be able to be absolutely certain. Powers which are potentially so wide and so intrusive on the sanctity of the home surely call for stringent safeguards.
I accept and assume that the police would seek to authorise those powers highly responsibly. I have the greatest respect for the police in the toughness of their task. But the underlying impetus of their work is to detect crime. It is inappropriate to ask them to put individual liberties into that balance. So does an authority much wiser than myself. On the same issue, the United States Supreme Court said:

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"The primary reason for the requirement of the judicial warrant is to interpose a neutral and detached magistrate between the citizen and the officer engaged in the often competitive enterprise of ferreting out crime".
The balance must, I think, be independent and judicial. In the United States such importance is attached to the issue that Article 4 of the United States Constitution enshrines the need for a judicial warrant. My concerns over the Government amendment—I recognise the care with which they have accepted that some improvement on the existing Bill is required—are twofold. First, as I understand it, the commissioner will be able to consider authorisations only on the principles upon which the court applies judicial review. That means that the commissioner will be able to overturn the judgment of the senior police officer only if he or they consider that that decision was plain perverse; in other words, that the police had gone right over the top.
By contrast, a judge would balance individual freedom against police claims that the intelligence was needed. As the noble Lord, Lord Rodgers, has said, he would be able, as they do in Australia, and other countries, to interrogate the police upon their claims and reach a thorough decision.
My second concern about the Government amendment is that the scrutiny of the commissioner would still be after the bugging had taken place. I believe, for all the reasons your Lordships have given, that authorisation should be in advance. I would add one other reason for my concern. In almost all cases, those under surveillance will never know that their privacy is being invaded. To me, that reinforces the need for a judicial warrant.
Judges are available for this purpose. No one has given me any reason why they cannot do the job. On the contrary, the only situation in which they would refuse the police application would be if they believed that the police are going too far. That is why their role is necessary. It is the historic one, as the noble and learned Lord, Lord Lloyd, said, of preserving the freedom of the citizen against unacceptable Executive inroads.
My own view is strengthened by the experience of other countries. In this country we pride ourselves on individual judgment, but there may be times when the universal views of other jurisdictions are of help to us. In the United States, Australia, New Zealand, France, and Germany, there can be no invasion of property without a prior judicial warrant. That is so even though for the most part in those countries the powers are cast in narrower terms than the very wide powers which are being granted in this country. As I understand it, in those other countries the need to satisfy a judge is seen as a sound discipline on police activity, as protecting the individual, and it meets the point raised by the noble Lord, Lord Marsh, of focusing accountability. I have heard no reason why the position would be different here.
I would conclude by warmly supporting the Home Secretary in deciding to put the powers that are to be granted on a statutory basis. It has been fascinating to hear this afternoon from the noble Lord, Lord
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Callaghan, and my noble friend Lord Carr that even in the higher reaches of government they were unaware of some of the action being taken. The Home Secretary is very much to be commended for his approach. I share also his aim as stated in The Times this morning of getting the balance right. For me, and I hope for my noble friends on these Benches, I join in supporting the concern for efficient policing, and I hope they join me in their concerns for the liberty of the individual. I hope that the Government will think again and will provide for prior authorisation. But if they feel unable to do so, I would cheerfully—I know not whether it is ecumenically or irresponsibly—support both amendments.
6 p.m.
Lord Williams of Mostyn: My Lords, there are two great themes which are not contradictory. The first is the necessity, which I absolutely support, of the proper, sensible deployment of police power in dealing with serious crime. But the definition of serious crime in this Bill is very wide indeed. It includes conduct which relates to the use of violence; that is, any conduct across the wide spectrum from the break-in through the newsagent's window to the murderous IRA attack at Canary Wharf.
The second great theme is that we should be ruled by laws, not men. If this Bill passes we move one step closer to a totalitarian system. I have studied with care the letter from Sir James Sharpies, on behalf of the Association of Chief Police Officers, which the Minister was courteous enough to circulate. Sir James says:
"Judges … have no direct experience of … operational decisions".
They do not. That is not their work or purpose. They have a different role. I submit to your Lordships that their role is to recognise and give effect to something which is infinitely delicate. It is the balance in a free and civil society between individual right and unregulated state interference with private property. I do not speak of property in the narrow, crude sense. I speak of a man's or woman's home. As has rightly been observed, once the intrusion is made into domestic premises or the workplace, documents may be seized and taken away.
No one has spoken with greater experience or authority, I suggest, than the noble and learned Lord, Lord Lloyd, who conducted the recent report into terrorism in Northern Ireland. It was a masterly report. It recommends, as the noble and learned Lord indicated, that material obtained on tapping telephones ought to be admissible in evidence in a criminal prosecution. It may have been noted by those of your Lordships who read the report that three of those who attended to give evidence to the noble and learned Lord were Mr. Jack Straw, Dr. Mowlam and myself. That was our recommendation to him.
There is no virtue in talking about Colombia or the Golden Triangle since we do not live there and, for my part, I do not wish to. However, one of the distinguishing features between Colombia and the Golden Triangle and our country is that we live by the rule of law.

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Sir James Sharpies pointed out:
"Chief Officers of police both constitutionally and operationally are uniquely placed to provide the necessary experience and expertise to make proper judgments".
I profoundly and stubbornly disagree. No chief officer of police has a unique constitutional place in this country. The law and the judges have that, and their place is the proper, considered, deliberated protection of individual right against police state intrusion. I have heard no argument put forward that there would be any interference with legitimate police activity.
I use my own experience for a moment, because it is no less in accord with the experience of the noble and learned Lord, Lord Rawlinson. I have prosecuted serious crime: murder, rape, armed robbery, terrorism. There has been no single case when the seeking of prior judicial approval would have interfered with the successful investigation or prosecution of that crime. But if there were, this is the purpose of the caveat in the amendment in the name of the noble Lord, Lord McIntosh of Haringey. If there were this extraordinary circumstance, and there might be, it would be lawful, if the Labour amendment were carried, for a chief constable to authorise intrusion, subject to immediate reporting to a judicial authority.
I do not pretend that the Labour amendment is perfect. I do not believe that the amendment of the noble Lord, Lord Rodgers, is necessarily perfect. There is a possible alternative scheme, namely to designate the presiding judges on each circuit in England and Wales, two presiding judges of High Court rank, those of six circuits and three presiding judges on the south-eastern circuit. The average, according to the figures we have been given, is 26 applications a week. I believe that 13 High Court judges could just about manage to deal with that number of applications. That scheme has its attractions, and I offer it not on a political basis but in a genuine desire to affirm the two themes, the principle of individual liberty in a free country.
I put it forward as an idea, consonant, I hope, with the views expressed by the noble Lord, Lord Callaghan, and the noble Lord, Lord Can. Who in this House has more experience of operational matters than they? It is put forward with the immense authority of the noble and learned Lord, Lord Browne-Wilkinson, and the noble and learned Lord, Lord Lloyd. This is not a political matter. It would demean us all if it became that. We should not become confused in the foolish matter of whether we vote for "Lord McIntosh" or whether we vote for "Lord Rodgers". It is infinitely more important than that. I respectfully agree with what was said by the noble Lord, Lord Jenkins of Hillhead. We shall do wrong if we sit passively and allow the moment's convenience to overtake what we know to be right.
Lord Knights: My Lords, it is with some diffidence that I rise to speak in this somewhat august company, but I feel that I ought to add one or two words on the implications, as I see them, of this debate on policing. In so far as the noble Lord, Lord Callaghan, and others were concerned about the number of occasions on which these techniques are used, I share their surprise. I had no idea whatever that this number was in fact taking
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place. Indeed, I hope that at some point during the debate the Minister may be able to tell us whether there is any breakdown of the figure of 1,200 or 2,000 or whatever it is, indicating exactly what is taking place. Are we talking about 1,200 or 2,000 dwellings, or are we talking about 50 dwellings and 1,150 motor cars that have had a bug placed on them so that they can be traced? We need to be more precise in terms of what we are actually dealing with.
The reason for the increase, if there is one, comes much more from the development of modern techniques rather than that the police have sought to use them more. In the past 10 years or so the technology has been available. It certainly did not exist previously. If it is of any comfort to the noble Lords, Lord Callaghan and Lord Can, to the best of my knowledge, those techniques were not used, at least in one big police force area before 1985. I am afraid that I am not in a position to speak about what has happened since 1985.
Bearing in mind the complete lack of any control over the use by commercial spies, private detective agencies or investigative journalists of the systems and devices which are at the heart of this debate, it may seem somewhat anomalous that the one organisation over whose activities in this field there is already a large measure of control—not that one would perhaps think so from the debate this afternoon—should now be at risk of having its operational abilities to counter organised crime and serious crime restricted by further bureaucratic controls, more particularly when less than 12 months ago the security services were given exactly similar powers for use when dealing with criminal activities as this Bill originally proposed for the police.
The controls currently existing include, I suggest, not only the Home Office guidelines of 1984, which are persuasive, but also the accountability of chief constables for their operational activities to the Home Secretary and indeed to their police authority, with removal from office as an ultimate sanction if they should act unreasonably in whatever field. Added to that, there is the surveillance of the Police Complaints Authority and the discipline code which embraces all officers from chief constable to constable. Also, and perhaps more important, there is the examination of their activities in this field by the courts when deciding whether or not it is fair that the product of those activities should be admitted in evidence. The case of Kahn decided in this House in July last year is a good example of that.
It seems to me that to move the decision whether or not to utilise intrusive surveillance from the chief constable to the commissioner or to a circuit judge would inevitably also remove that element. Indeed, the noble Lord, Lord McIntosh, referred to it earlier. The effect would be to move the operational decision from the chief constable to the judge or the commissioner.
I submit that the knowledge that all those requirements exist and that the decision to deploy such techniques may, in the final analysis, have to be defended and justified to a court—maybe even to your Lordships' House—are powerful influences playing on a chief constable when he is considering what action he

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should or should not authorise. However, although no evidence of past abuse of those techniques has been produced during the past weeks and months when this matter has been debated, it has been exposed to so much public examination that I feel that there should be added some check to the present position. During that period or indeed earlier, no one has sought to keep those techniques under wraps. Indeed, they have been clearly exposed, if not during the past few months certainly during the past few weeks.
It is also clearly necessary to increase the level of supervision to an extent which is commensurate with the continued ability of the police to operate efficiently in this dangerous, rapidly changing and moving area of police investigative work. Above all, that means that no obstacle should be placed in their way so as to cause delay as and when windows of opportunity arise for those techniques to be usefully and properly deployed.
Another factor which should not be overlooked is the extent to which a chief constable can be briefed on a developing situation, perhaps long before the decision to use intensive techniques falls to be taken. One cannot envisage the commissioner or a circuit judge having that advantage. It is a considerable advantage because it means that when the time comes to take the decision it can be taken very quickly. I believe seriously that the decisions in these matters must continue to rest fairly and squarely with the chief constable of the police whose task it is to deal with crime in all its aspects.
The question of delay is, I believe, at the heart of what will be decided one way or the other. Personally, I would not object and indeed would support the introduction of a judicial element into the decision, if I could be satisfied that alternative arrangements exist to enable decisions to be taken urgently in urgent cases. There are occasions when it is urgent. It can be a matter of only hours between the information becoming available and the opportunity being lost. There have been cases in kidnapping, for example, where decisions have had to be taken within a matter of 10 or 12 hours which, if not taken, might have led to loss of life of the kidnapped person. I do not wish to over-dramatise but merely to illustrate the fact that urgency and quickness of movement is of the essence.
For all those reasons I would, at this stage, support the Government's amendments rather than those of the Opposition. But I could be persuaded to change my mind, if the business of urgency could indeed be dealt with.
6.15 p.m.
Lord Spens: My Lords, I thank the Minister for sitting down again with such courtesy. I shall be very brief and put forward a point of view which has not been heard so far in this debate; namely, that of the intruded upon individual.
As noble Lords will know, during the Guinness affair there was considerable surveillance of this type. A Home Office warrant was issued with instructions to intercept 384 telephones. Quite why it was needed to intercept so many telephones has never been fully
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understood. Quite why colleagues should have their telephone numbers on the list is perhaps a little understandable. Quite why my gamekeepers should have their telephone numbers on the list has never been fully understood.
During the course of a nine-month period, my house was burgled, my office was burgled three times and my London flat was burgled. None of them has ever been burgled before nor since. From the house were taken, we think, papers. From the office, papers were copied, I believe, and from my London flat were taken photographs, which were handed to a London newspaper the day after I was arrested, in order presumably to blacken my name. When we went more deeply into those interferences, we discovered that our offices were not being bugged by the police as such but that one of my secretaries was being paid to hand over information.
Bugging, in those days, was an analogue system with mechanical arms and it was done on a key-word system, which meant that one had to say "Guinness" or "Saunders" or something else to trigger a huge squawk on the telephone. Everyone went into it, because they so enjoyed it but it cannot have been much fun to those who were listening. My children managed to discover 14 such key words.
I went to a colleague's house. He had a telephone van at the bottom of his drive for eight months. I suggested to him that we should go to our local pub and see if those people turned up for a drink, which they duly did being sensible yeomen. We got into talk with them and they apologised for what they were doing but said that orders were orders. They said that the only information that they had had of any consequence was the winner of the Grand National.
Authorisation is badly needed. We discovered—it was certainly to my satisfaction—that not only were the police doing this but also a department of the Home Office, under the direct supervision of a deputy secretary, which ran a team of denials that it paid, presumably in cash, to do its burglary. We have never been able fully to establish the member of the committee who ran this team, but we know some of the names. If in future those actions have to be authorised or investigated, extreme good will come from what has been an absurd abuse of the system for some time.
Baroness Blotch: My Lords, we have listened carefully to the arguments which have been advanced. I am conscious that there are some misunderstandings about what is proposed in the Bill, and clearly differences of view as to how serious crime is pursued in this country. It may therefore be helpful if I set out our proposals and the reasons underlying them.
There is much common ground that the threat to this country from serious and organised crime must be dealt with effectively and that the police and Customs must have authority to mount intrusive surveillance operations against those involved in crime. They have been carrying out these operations successfully and with a good deal of restraint for many years. The police are concerned about the invasion of a person's privacy and therefore do not take decisions to act in this way lightly.

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I was somewhat surprised at the confession, if I can call it that, of the noble Lord, Lord Callaghan. I understood how his memory does not remind him today of what happened when he was in the Home Office and was Home Secretary, or indeed the noble Lord, Lord Jenkins of Hillhead, my noble friend Lord Can and others. But there were submissions to the department in those days about these activities. Indeed, when the noble Lord, Lord Callaghan, was Prime Minister there were submissions—which I have not seen because I am not privy to them—to the noble Lord, and the noble Lord, Lord Merlyn-Rees, who was the Home Secretary of the day. There was certainly knowledge that circulars were going out in the name of the police to put guidelines in place to ensure that those activities were carried out properly. Those guidelines were strengthened in the early 1980s. It is the police who have pressed Government over some years now to put these activities on a statutory basis.
Lord Callaghan of Cardiff: My Lords, I am obliged to the noble Baroness for giving way.
The Permanent Secretary at the Home Office when I was Home Secretary was the noble Lord, Lord Allen of Abbeydale. He was present although he had told me that he would not be able to be here. I have checked carefully with him. The noble Lord tells me that I had no information about this matter. I do not know why that was so. It may be for the reason given by the noble Lord, Lord Knights, that these methods of intrusion were not then available. It is quite true that it was 30 years ago and those methods were perhaps not used. That is a possible explanation. But what is quite clear is that there was absolutely nothing going on in the Home Office at that time which begins to compare with what is taking place now, as the noble Lord, Lord Knights, said.
Lord Carr of Hadley: My Lords, I wish to confirm that my experiences were exactly the same as those of the noble Lord, Lord Callaghan. I, too, have checked with the Permanent Secretary during the first part of my term as Home Secretary. He was succeeded in the middle of my term by a successor who has since died. Certainly for the first half or thereabouts of my term as Home Secretary exactly the same applies as regards information that I was or was not given as to the noble Lord, Lord Callaghan.
Baroness Blatch: My Lords, for the record I should read the first paragraph of a letter which went out from the Home Office in 1977 when the noble Lord, Lord Callaghan, was Prime Minister. The first paragraph reads as follows:
"The use of certain equipment in police surveillance operations may involve encroachment on privacy. The principles and procedures relating to such use have been reviewed in consultation with the Association of Chief Police Officers and the Commissioner of Police of the Metropolis, and the following arrangements have been agreed for a trial period of 12 months from the date of this letter."
This particular letter was not placed in the Library until 1982. At the time it recommended a strengthening in the police guidelines. I could go on but this letter is available in the Library.
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Interestingly, it was probably because Ministers in the Home Office when the noble Lord was Prime Minister and the noble Lord, Lord Merlyn-Rees, was the Home Secretary, genuinely had concern that these activities, first, were important and essential in the pursuit of serious crime, but, secondly, that they should be carried out under some guidance. Whatever that concern was I do not know because it would be some time before we were able to look back at the record, but clearly there was concern. There was a review under the Government of the noble Lord, Lord Callaghan, guidelines were produced. They were reproduced and strengthened in the early 1980s.
As I said, the police have always felt uncomfortable that there was no statutory basis for these activities. The matter was brought up again in this House during discussion on the Security Service Bill. We gave a promise at that time that once the consultations were at an end, we would come back to the House without delay with a proposition to put these activities on a statutory basis.
Lord Callaghan of Cardiff: My Lords, the noble Baroness has not dealt with the period when I was Home Secretary to which I specifically referred. Although I have no personal knowledge and I do not know whether these papers were submitted to me when I was Prime Minister and I do not know whether my initials are on them. They are not; I had thought that probably they are not. I agree that with the change of public opinion and public culture on these matters there has been a growing feeling that these matters should be regularised. The noble Baroness will remember that I said that during the lifetime of this Government they have moved progressively in that direction and that they are entitled to be supported. I offered them credit for that this afternoon. It may well be that my noble friend Lord Merlyn-Rees was also beginning to move in the direction of introducing guidelines prior to statutory action, but now that the matter is in the full light of day, we all know where we are. I know where I stand on that.
Baroness Blatch: My Lords, the noble Lord will know that I would not see any paper that had his signature on it. It is a good thing that this piece of paper does not have the noble Lord's signature.
It was the noble Lord, Lord Merlyn-Rees, who was concerned that there should be guidelines and these guidelines were produced, subsequently placed in the Library, subsequently strengthened and now we are here putting the issue on a statutory basis.
The reason that I made a point of that is this. Some very powerful people have spoken today—the noble Lord, Lord Callaghan, the noble Lord, Lord Jenkins of Hillhead, my noble friend Lord Carr—who all gave an impression to the House that they had no idea that this was going on. If they had no idea in a year when 500 to 600 activities took place—
Lord Callaghan of Cardiff Lord Callaghan of Cardiff: No, no, no.
Baroness Blatch Baroness Blatch: My Lords—
Lord Callaghan of Cardiff: My Lords, with respect to the noble Baroness, although I would not care to put

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a figure on it, I doubt when I was Home Secretary that the figure reached 150. And that was not the police. That was for MI5 and the intelligence services. Not one for the police ever passed under my hand.
Baroness Blatch: My Lords, I think that it is not possible for the noble Lord to say that none of these activities were taking place at that time.
Lord Callaghan of Cardiff: My Lords, I do not think it is possible for the noble Baroness to say that there were.
Baroness Blatch: My Lords, perhaps I may complete the point. I have made the point that it was when the noble Lord was Prime Minister. When the noble Lord was Prime Minister and his party were in office, his then Secretary of State was concerned about this activity and initiated the first set of guidelines because there was that concern. In the year following the guidelines there were between 500 and 600 activities. I cannot believe that it went from no activities at all to 500 or 600 activities in that one year. The truth is that it has been going on with, I believe, a high degree of responsibility on the part of the police. To think that the number has gone from 500 to 600 in 1978-79 to 1,200 or 1,300 this year for the whole of England and Wales is not an unprecedented increase.
Lord Callaghan of Cardiff: My Lords, with respect, there can be no conclusion about this matter. However, it is my general view that this began to increase in the 1970s when there was such industrial trouble. That is my belief about it and I am as much entitled to my belief about it as the noble Baroness is to hers. That is when it started—when there were a large number of strikes in this country. I take full responsibility for 1977, whether I saw the papers or not, but I do say that it has now reached alarming proportions and that it should be brought under prior authorisation in a statute.
6.30 p.m.
Baroness Blatch: My Lords, that is precisely what we are about and that is precisely the proposal in the Bill.
We believe that those who take operational decisions must be accountable for their actions. The proposals set out in the Bill, together with additional amendments to the Marshalled List today, will provide a robust system which allows for high level independent oversight of every single operational decision. This role will be discharged by a commissioner who is or who has recently been a High Court judge. The commissioner will be informed of every authorisation as it is granted. In addition to having continuous oversight to review and monitor the operational decisions taken by chief officers, he will have powers to quash an authorisation, if necessary, immediately.
I should like to make one other point about the accountability of chief officers. It is that they can be required to give evidence in court to justify the authorisation they have granted. When that occurs, they
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will be required to explain how they have satisfied the strict criteria which are set out in Clause 91(3) and that they have followed the procedure set out in the code of practice.
We believe also that there must be a clear distinction—this is my key point—between the roles of the commissioners and the chief officers. It is not the job of the commissioner to second-guess the decisions of chief officers, a point that was well made by the noble Lord, Lord Marsh. It will be their role to ensure that decisions have been properly taken in accordance with the Act and to investigate complaints. How can a commissioner or a judge investigate complaints or actions to which he has been party?
Under the amendments put forward by the noble Lord, Lord McIntosh, the role of he commissioners would become blurred and, in our opinion, less effective. If these operations were authorised by the commissioner, then who would review the decision to ensure that it had been properly taken? Under these amendments, it would be the commissioners themselves. They would become judge and jury. And although, under the noble Lord's amendments, the decisions of the commissioners would be subject to appeal, that would happen only in cases where there was a criminal prosecution and the use of these techniques became known. What would happen in these cases or in cases where there was judicial authorisation, as suggested by the noble Lord, Lord Rodgers, where the commissioners' or judges' decisions were later questioned in court? It would undermine judicial independence for the commissioner to have any function of quashing an authorisation given by a judge and he obviously could not order a judge to pay compensation. With prior authorisation, would this make the commissioner liable to pay compensation? After all, he will have approved the authorisation.
It would also be difficult to see how any complaints system would work. It is unlikely that there would be any public satisfaction with a system where the commissioners would be both authorising an operation and investigating a complaint about their own decision.
The amendments make provision for the prior authorisation of the commissioner in cases involving interference with premises. This could create uncertainty for chief officers about the circumstances in which they had to seek prior approval or, if a window of opportunity arose while approval was still being sought, whether they could lawfully proceed. What, for example, would constitute "premises" and where would a situation be so urgent that it would not be reasonably practicable to seek prior authorisation? Confusion in such circumstances could lead to disastrous operational consequences. Indeed, it is possible, on the very same case, that a chief officer could authorise the bugging of a vehicle and the commissioner would have to authorise the bugging of a garage, an outbuilding or some other premise.
It is the blurring of responsibilities and effective second-guessing of chief officers that we believe could significantly damage the operational effectiveness of these techniques. We very strongly believe that

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responsibilities must be clear. Chief officers must be free to take operational decisions in accordance with the strict criteria which the Bill and the code of practice will provide. The proper role of the commissioner is to review such decisions to establish whether they have been properly taken. And in taking such decisions, the commissioner should apply the principles of judicial review; that is, that the decision was reasonable, that there was no procedural impropriety in the way the decision was taken and that there was a legal basis for the decision. These must be the most important elements in any oversight process. That is why we have tabled amendments which will significantly strengthen the role of the commissioner but maintain these important distinctions.
We, and the Association of Chief Police Officers, very strongly believe that these amendments could significantly inhibit the ability of the police to fight serious crime effectively, and reducing the ability and effectiveness of the police to fight serious crime is unacceptable to the Government.
The other amendments replace the existing provision for the appointment of an independent surveillance commissioner and provide for the appointment of not fewer than three commissioners. We have tabled our own amendments on this matter, which we consider more effectively achieve this, which will be discussed later. I welcome the comments made by the noble Lord, Lord McIntosh, about that, but we shall come to those amendments at some point later this evening.
I share the view that more than one commissioner will be necessary. But I believe, with one exception, that the amendments tabled by the Government achieve this objective in a more satisfactory manner. The exception is that I would support Amendment No. 105 providing that the commissioner who finds in favour of a complainant should make the determination specifying what, if any, should be the amount of compensation to be paid.
Perhaps I may touch on some of the points made during the course of debate. In answer to my question about Amendment No. 80, I remain uncertain, from what the noble Lord said, as to whether the surveillance commissioner would or could be called to give account in court for his involvement; that is, giving approval for a surveillance activity in pursuit of serious crime. If he could, then he is being dragged into the investigative process; if not, then who does account for approving the authority of a surveillance activity? I am advised that he could be called to justify his decision before a circuit court judge and this could result in a circuit court judge making the decision that the commissioner was wrong. Where does that leave the commissioner, having been found wanting making a decision when he has the responsibility for oversight of the proper workings of this activity? Although Amendment No. 80 refers to the authorising officer giving the authorisation, the noble Lord said the distinction is that he does not actually give the authorisation. But since this is subject to the approval of the commissioner, then it is the commissioner who has the final say.
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Much has been said about the freedom of the individual and it is an important and fundamental point to make in the context of this debate. However, as the noble Lord, Lord Marsh, said, the freedom of the individual must be weighed against the protection of people whose freedom to go about their everyday activities is denied by the activities of serious and organised criminals.
The noble Lord, Lord Mishcon, asked where accountability lies. Chief constables will be bound by the provisions in Clause 91(3). They will be bound by the code of practice in coming to a decision. They will have to satisfy themselves as to all the criteria set out. The commissioner will be informed of every single authorisation a chief constable makes. He will have the power to quash at any time from the point at which he receives notification of an authorisation. He has a role in the review and monitoring of all decisions. He makes an annual report to the Prime Minister—a requirement also set out in Clause 97—and the Prime Minister puts the report before Parliament. The chief constable is of course also accountable to the courts—
Lord Mishcon: My Lords, I am most grateful to the noble Baroness for what she says about accountability, but accountability, as I have always understood it in this House, has meant accountability with detail to Parliament. Is the noble Baroness suggesting that the report that would be given by the commissioner would contain details of every case?
Baroness Blatch: My Lords, of course, I am not suggesting that. Is the noble Lord really suggesting that the operations of the police in pursuit of serious crime, perhaps acts of terrorism, should come to this House via the Prime Minister with details of how they were operating? What is important is that they are accountable for the authorisations they give; they are accountable in court when criminal cases are taken there as to how they exercise that authority. But of course it would not be for Parliament to understand all the ins and outs of how the police pursued their criminal investigations.
Lord Mishcon: My Lords, with the leave of the House, what I was suggesting before and suggest again now, is that accountability would be there if it was to an independent judicial body, or in fact, an independent judge. As the procedure will now exist there will be no accountability at all.
Baroness Blatch: My Lords, obviously I have not made myself very clear. The accountability in every single authorisation is to an independent person who has the authority and who in fact has been or is already sitting as a senior High Court judge. It is that person—the commissioner—who will make the annual report to the Prime Minister, who will then report to Parliament. I believe that that is independent judicial oversight of the decisions that are made. The difference between us is about prior authorisation or post-monitoring and review of the way in which the decision was taken. However, I believe it is a robust and rigorous system of accountability concerning the actions of a chief officer.

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A number of references were made to the proposal made by the noble Lord, Lord McIntosh. He, for example, did not explain how his scheme would work in practice. He has said there should be more than one commissioner to cover the whole of the United Kingdom. We are talking about three, or not fewer than three. I should like to pose the question: how would one get in touch, unless there were many more of them, very, very quickly? Would one have to use fax machines or telephones in order to do this work? If so, then of course there is the very real danger of information leaking. And if not by fax, what would be the other system which would not be cumbersome, unreliable or slow? Subsection (2) proposed by the noble Lord, Lord McIntosh, in Amendment No. 24 recognises that the procedure will not cover urgent situations. When the noble Lord, Lord Rodgers, was speaking I understood that the Liberal Democrats believe that urgent action is always necessary in these events. Therefore I pose the question: is the scheme flawed in that respect? The dual role for the commissioner as set out in the amendments would certainly lead to a conflict of roles.
The noble Lord, Lord Callaghan, asked for figures for previous years. I am afraid that we have only two figures, which I have given to the House. One relates to the time when there was a review in progress during the noble Lord's term as Prime Minister, and is the figure of between 500 and 600. The other we know came from the Association of Police Chief Officers itself as a precursor for this debate: it is the 1995 figure. I am not able to give him specific figures for the intervening period.
The noble and learned Lord, Lord Browne-Wilkinson, asked whether the police were acting unlawfully now. We do not accept that they have been acting unlawfully, although, of course, everything will depend on the circumstances of each case. The exercise of intrusive surveillance powers by the police has not, so far as we are aware, been ruled unlawful by the courts and indeed much of the judicial scrutiny that has taken place has implicitly endorsed the exercise of these powers. Even with judicial warranty, much of the—
Lord Browne-Wilkinson: My Lords, I am grateful to the noble Baroness, I do not want to take up more time of the House because your Lordships want to vote. However, I would be grateful if by the usual channels at least I could be given a sight of an opinion taken by or given by the law officers, which explains how conceivably the action is lawful, because no lawyer that I know could take that view.
Baroness Blatch: My Lords, first, I have made the point about cases that have come to court where the courts have not pronounced on the illegality or otherwise of a case. There are also circumstances when this kind of activity is carried out when it is carried out by the police officer under common law. The point I made about its being a case-by-case judgment is very important. The noble Lord, Lord Hutchinson, referred to a number of concerns, but even with judicial warranting there would be no requirement for the defendant or an
438
accused to be aware of what had gone on. It would not be possible to convict people on evidence recovered by intrusive surveillance but not used in court. It would have to be presented in court; and a jury cannot convict on evidence it does not hear. If the evidence has not been produced it is not available to the court to be used.
Some passing comments were made about my noble and learned friend who has been solidly with me on this Bench throughout this Bill, the Lord Advocate. He has practised in law for 25 years and I can only say that his record is an extremely impressive one.
I was asked whether the revised guidance was issued in 1984 and put into the Library. The answer is, yes, it was issued in 1984 and it was the subject of a Question in this House in December 1984, when your Lordships were told that a copy of the guidelines had been placed in the Library of the House. There was a reference to a note explaining why telephone tapping is different. Under IOCA, the Secretary of State directs a third party to implement intercepts: that concerns the non-law enforcement agencies. In this provision, the police themselves carry out the intrusive surveillance and it is therefore only appropriate for the third party to be directed by the Home Secretary to do something which would otherwise be unlawful.
The noble Lord, Lord Walton of Detchant, referred to the problems and concerns of the medical profession. We simply cannot have exemptions of categories, because this would create loopholes. We have agreed with the Association of Chief Police Officers, who understand the point that is being made by the noble Lord on behalf of the BMA, a further amendment to the code of practice which I hope the noble Lord will find helpful. If I may give him the form of words which it is envisaged shall be used, they are:
"When carrying out the intrusive surveillance of premises to which members of the public have access for matters of a confidential nature, for example, a hospital, a doctor's surgery or a lawyer's office, subject to any disclosure considerations, any material obtained which is unrelated to an investigation involving serious or organised crime should be destroyed immediately".
I have one or two final points. My noble friend Lord Alexander has referred to other countries, but some of those other countries where these provisions exist are where the examining magistrate is part of the investigative process. In this country the investigation of crime is entirely within the responsibility of the police and Customs. Our system of law enforcement is built upon the notion of over 50 operationally independent chief officers. I believe that these officers have demonstrated that they are the best equipped to make these decisions.
No one can be certain that their house has never been bugged, as my noble friend Lord Alexander pointed out. The defendant may never know that his premises or his car has been bugged, a point made by the noble Lord, Lord Hutchinson. The innocent conversations of third parties, unconnected with the police inquiry, may well be overheard and recorded, but I have given the noble Lord my promise that something will be included in the code of practice to address that point.

439
The noble Lord, Lord Knights, asked me for a breakdown. I am afraid that I cannot give that, except to say that in the majority of cases the bugging or tracking of vehicles is involved, as is entry to non-residential property, such as outbuildings or garages. My "understanding"—if I am allowed to use that word in this context; perhaps I should say "I believe"—is that intrusion into private houses is, in fact, rare.
Perhaps I may repeat a point that I made earlier and advise the noble Lord, Lord Knights, that it is the police themselves who want to have their activities put on a statutory basis. At present, circuit judges, sheriffs and JPs are not called as witnesses to justify their decision to grant a search warrant. However, at present chief constables are called to justify their decision to authorise intrusive surveillance. Therefore, if the ultimate decisions are left to judges, accountability would be reduced and would not be as great as under the proposals in the Bill—that is, unless they are to be put in the same position as chief constables.
Together with our amendments, the proposals in the Bill provide for greater accountability with chief officers having to justify their decisions not only to the commissioner but, in many cases, ultimately to the courts. They provide a clear distinction between the authorisation and the review process, enabling the decisions of chief officers to be carefully scrutinised and monitored, and the maintenance of the separate functions of the judiciary and the investigative agencies without pulling judges into the investigation process. They are effective arrangements which do not lead to any delay in awaiting authorisation and which ensure that the confidentiality of operations is maintained. Again, that point was made by the noble Lord, Lord Knights.
Chief officers are very responsible people who are fully and publicly accountable. It is unthinkable that they would behave in a cavalier fashion or on a whim. Under the proposals set out in the Bill, it would be near impossible for them to do so without serious consequences. Indeed, it would not be in their best interests or in the interests of the high reputation in which our police serve for their decisions to be constantly challenged and overturned. Therefore, this rigorous system of oversight, review and monitoring, together with the power for the commission to quash decisions, will act as an effective pressure on chief officers to act responsibly. I hope that the amendments will be rejected.
Lord McIntosh of Haringey: My Lords, this has been a remarkable debate and I would not have missed a minute of it. Despite the obligation on the Minister to respond fully, as she has, I do not think that the House would thank me for attempting to summarise or to comment on each of the issues discussed this afternoon and this evening.
There are two fundamental issues, and the first very much more fundamental than the second. The first fundamental issue is whether it should be possible for the police to authorise themselves to enter people's homes or other premises without outside authority. On
440
that issue, everybody except the noble Lords, Lord Marsh and Lord Campbell of Alloway, and, with qualifications to which I shall come in a moment, the noble Lord, Lord Knights, has said—and, of course, the Minister—
Noble Lords Noble Lords: And Lord Gisborough!
Lord McIntosh of Haringey: My Lords, and the noble Lord, Lord Gisborough. I beg his pardon. Each has said, "No, it should not be possible for the police to authorise themselves to bug premises". That is the fundamental issue on which the Government have given no ground whatsoever and that is the basis on which I am obliged to seek to put my amendment, Amendment No. 24, to the opinion of the House.
The second issue, which is much less important, relates to the mechanics used to provide prior judicial authorisation. I emphasise that the difference between my amendment and that tabled by the noble Lord, Lord Rodgers, is nothing like as great as the issue between both of us and the Government. If that is what President Clinton calls "triangulation", so be it.
I remind myself of the difficulties which the Green Party in Germany got into when it was forced to divisions between the Realos—those who believed in collaboration, negotiation and in advancing step by step in order to make progress—and the Fundis—those who believed in the fundamental truth of a pure theological doctrine. In these circumstances, the noble Lord, Lord Jenkins of Hillhead, has appealed to what he called "flexible ecumenism", but I am afraid that the position from which the noble Lord argues is the Fundi position, whereas I am the Realo.
Let us consider the difference between us. My amendment deals with premises, not with secondary bugging such as, for example, the bugging of vehicles to discover where they are going and where they have been. In that sense, our amendment is very much more practical than either the Government's proposals or those of the Liberal Democrats. Our amendment proposes that one of a body of commissioners—there is no reason why the commissioner who gives the approval should himself be responsible for checking on that approval afterwards—who is a senior High Court judge should give that approval. This is a realistic point because that proposal provides that the people giving the approval have knowledge of what they are doing and provide consistency throughout the country.
Thirdly and finally—I address this point particularly to the noble Lord, Lord Knights—our amendment provides that in a policing emergency it is possible for the police to go ahead, provided they get subsequent authorisation as soon as it is possible practically to do so.
I want to maximise the vote for civil liberties in this House and I ask all noble Lords who believe in that as well as in efficient policing to support my amendment. However, I have to advise the noble Lord, Lord Rodgers, and his friends that, because I believe that their amendment is so fundamentally defective, I cannot support it if the Question on it is put subsequent to that

441
on my amendment and that I shall ask my noble friends to join me in not supporting it. Meanwhile, I beg to move that Amendment No. 24 be agreed to—
Lord Alexander of Weedon: My Lords, before the noble Lord—
Noble Lords Noble Lords: Order!
Lord Alexander of Weedon: My Lords, I thought that I could ask a question before the noble Lord sat down. I wanted to ask him the single question: if it came to the choice, would he prefer the Liberal Democrats' amendment or the Government's amendment?
Lord McIntosh of Haringey: My Lords, I do not believe that that is the choice—
Noble Lords Noble Lords: Oh!
Lord McIntosh of Haringey: No, my Lords, I do not believe that that is the choice. First, I think that the noble Lord will accept that if my amendment is carried, it will be nonsensical to put the Question on a further, conflicting amendment. If the amendment is defeated we must all put our heads together and force ourselves to find a method of maximising opposition to the Government in a way that is acceptable and attractive to all shades of opinion.
6.59 p.m.
On Question, Whether the said amendment (No. 24) shall be agreed to?
Their Lordships divided: Contents, 209; Not-Contents, 145.

Division No. 1

CONTENTS

Acton, L.

Carlisle, E.

Addington, L.

Carmichael of Kelvingrove, L.

Alderdice, L.

Camegy of Lour, B.

Alexander of Weedon, L.

Carr of Hadley.L.

Annan, L.

Carter, L.

Archer of Sandwell, L.

Castle of Blackburn, B.

Ashley of Stoke, L.

Chandos, V.

Avebury, L.

Charteris of Amisfield, L.

Barnett, L.

Chorley, L.

Bath, M.

Clancarty, E.

Beaumont of Whitley, L.

Cledwyn of Penrhos, L.

Berkeley, L.

Clinton-Davis, L.

Bingham of Comhill, L.

Cocks of Hartcliffe, L.

Blackstone, B.

Craigmyle, L.

Bledisloe, V.

Cross, V.

Borrie, L.

Currie of Marylebone, L.

Boyd-Carpenter, L.

Dahrendorf, L.

Bridge of Harwich, L.

Darcy (de Knayth), B.

Brightman, L.

David, B.

Broadbridge, L.

De Freyne, L.

Brooks of Tremorfa, L.

Dean of Beswick, L.

Browne-Wilkinson, L.

Dean of Thomton-le-Fylde, B.

Bruce of Donington, L.

Desai, L.

Callaghan of Cardiff, L.

Donaldson of Kingsbridge, L.

Calverley, L.

Donaldson of Lymington, L.

442

Donoughmore, E.

Mackie of Benshie, L.

Donoughue, L.

McNair, L.

Dormand of Easington, L.

McNally, L.

Dubs, L.

Mar and Kellie,E.

Dundonald, E.

Marlesford, L.

Elis-Thomas, L.

Masham of Eton, B.

Elton, L.

Mason of Barnsley, L.

Erroll, E.

Merlyn-Rees, L.

Ezra, L.

Methuen,L.

Falkender, B.

Mishcon, L.

Falkland, V.

Molloy, L.

Farrington of Ribbleton, B.

Monkswell, L.

Fisher of Rednal, B.

Monson, L.

Fitt, L.

Morris of Castle Morris, L.

Freyberg, L.

Mountgarret, V.

Gallacher, L.

Munster, E.

Geddes, L.

Murray of Epping Forest, L.

Geraint, L.

Nicol, B.

Gibson, L.

Norton, L.

Gladwin of Clee, L.

Ogmore, L.

Gladwyn, L.

Paul,L.

Gould of Potternewton, B. [Teller.]

Pender, L.

Perry of Walton, L.

Graham of Edmonton, L. [Teller.]

Peston, L.

Gregson, L.

Plant of Highfield, L.

Grey, E.

Ponsonby of Shulbrede, L.

Hacking, L.

Prior, L.

Halsbury, E.

Prys-Davies, L.

Hampton, L.

Ramsay of Cartvale, B.

Hamwee, B.

Rawlinson of Ewell, L.

Hankey, L.

Rea,L.

Harmsworth, L.

Redesdale, L.

Harris of Greenwich, L.

Rees-Mogg, L.

Harrowby, E.

Richard, L.

Haskel,L.

Ritchie of Dundee, L.

Hayhoe, L.

Rix,L.

Hayman, B.

Rochester, L.

Healey, L.

Rodgers of Quarry Bank, L.

Hemingford, L.

Rogers of Riverside, L.

Hertford, M.

Roll of Ipsden, L.

Hilton of Eggardon, B.

Russell, E.

Hollick, L.

St. Davids, V.

Hollis of Heigham, B.

St. John of Bletso,L.

Holme of Cheltenham, L.

Sefton of Garston,L.

Hooson, L.

Selbome, E.

Hope of Craighead, L.

Serota, B.

Howell,L.

Sewel, L.

Howie of Troon, L.

Shannon, E.

Hughes, L.

Shaughnessy, L.

Hutchinson of Lullington, L.

Simon, V.

Hylton-Foster, B.

Simon of Glaisdale, L.

Irvine of Lairg, L.

Slynn of Hadley, L.

Jay of Paddington, B.

Spens, L.

Jeffreys, L.

Stallard, L.

Jeger, B.

Stoddart of Swindon, L.

Jenkins of Hillhead,L.

Strabolgi, L.

Jenkins of Putney, L.

Strafford, E.

Judd, L.

Symons of Vemham Dean, B.

Kennet, L.

Taverne, L.

Kilbracken, L.

Taylor of Blackburn, L.

Kilpatrick of Kincraig, L.

Taylor of Gryfe, L.

Kimball, L.

Thomas of Gresford, L.

Kinloss, Ly.

Thomas of Swynnerton, L.

Kinnoull, E.

Thomas of Walliswood, B.

Kintore, E

Thomson of Monifieth, L.

Kirkwood, L.

Thurso,V.

Lester of Herne Hill, L.

Tope,L.

Lincoln, Bp.

Tordoff, L.

Lloyd of Berwick, L.

Turner of Camden, B.

Lockwood, B.

Varley, L.

Longford, E.

Wallace of Coslany, L.

Lovell-Davis, L.

Wallace of Saltaire, L.

Lucas of Chilworth, L.

Walton of Detchant, L.

Macaulay of Bragar, L.

Weatherill, L.

McCarthy, L.

Wedderbum of Charlton, L.

McIntosh of Haringey, L.

White, B.

443

Wigoder, L.

Williams of Mostyn, L.

Wilberforce, L.

Winchilsea and Nottingham, E.

Williams of Crosby, B.

Winston, L.

Williams of Elvel,L.

Wolfson, L.

Wright of Richmond, L.

NOT-CONTENTS

Addison, V.

HolmPatrick, L.

Ailsa, M.

Hood,V.

Allenby of Megiddo, V.

Hooper, B.

Anelay of St. Johns, B.

Howe, E.

Ashboume, L.

Huntly, M.

Astor of Hever, L.

Inglewood, L.

Attlee,E.

Jenkin of Roding, L.

Balfour, E.

Kitchener, E.

Beaverbrook, L.

Knights, L.

Belhaven and Stenton, L.

Laing of Dunphail, L.

Beloff, L.

Lane of Horsell, L.

Biddulph,L.

Layton, L.

Birdwood, L.

Leigh, L.

Blaker, L.

Lindsay, E.

Blatch, B.

Liverpool, E.

Boardman, L.

Long, V.

Bowness, L.

Lucas, L.

Brabazon of Tara, L.

Lyell, L.

Bridgeman, V.

McColl of Dulwich, L.

Brigstocke, B.

McConnell, L.

Brookes, L.

Mackay of Ardbrecknish, L.

Brougham and Vaux, L.

Mackay of Clashfem, L.[Lord Chancellor.]

Butterworth, L.

Byford, B.

Mackay of Drumadoon, L.

Cadman, L.

Macleod of Borve, B.

Caithness, E.

Marsh, L.

Campbell of Alloway, L.

Massereene and Ferrard, V.

Campbell of Croy,L.

Merrivale, L.

Carnock, L.

Miller of Hendon,B.

Chadlington, L.

Montagu of Beaulieu, L.

Chalker of WaUasey, B.

Monteagle of Brandon, L.

Chelmsford, V.

Montgomery of Alamein, V.

Chesham, L. [Teller.]

Mottistone, L.

Clanwilliam, E.

Mountevans, L.

Clark of Kempston, L.

Mowbray and Stourton, L.

Cockfield, L.

Moyne, L.

Colwyn, L.

Murton of Lindisfame, L.

Courtown, E.

Napier and Ettrick, L.

Craig of Radley,L.

Nelson, E.

Cranbome, V. [Lord Privy Seal.]

Northesk, E.

Cumberlege, B.

O'Cathain, B.

Dean of Harptree, L.

Oxfuird, V.

Denbigh, E.

Peel, E.

Denham, L.

Pike,B.

Denton of Wakefield, B.

Pilkington of Oxenford, L.

Derwent, L.

Platt of Writtle, B.

Dilhome, V.

Quinton, L.

Dixon-Smith, L.

Rankeillour, L.

Downshire, M.

Reay, L.

Eden of Winton, L.

Rennell, L.

Elles, B.

Renton, L.

Elliott of Morpeth, L.

Renwick, L.

Feldman, L.

Rodney, L.

Ferrers, E.

Romney, E.

Rather, B.

Rotherwick, L.

Fraser of Carmyllie, L.

Saatchi, L.

Gainford, L.

Saltoun of Abemethy, Ly.

Gardner of Parkes, B.

Seccombe, B.

Gisborough, L.

Shaw of Northstead, L.

Glenarthur, L.

Shrewsbury, E.

Goschen, V.

Soulsby of Swaffham Prior, L.

Gray, L.

Stewartby, L.

Gray of Contin, L.

Strange, B.

Harding of Petherton, L.

Strathcarron, L.

Hardwicke, E.

Strathclyde, L. [Teller.]

Henley, L.

Sudeley, L.

Hogg, B.

Swinfen, L.

Holdemess, L.

Taylor of Warwick, L.

444

Terrington, L.

Wade of Chorlton, L.

Thomas of Gwydir, L.

Wise, L.

Trefgame, L.

Wrottesley, L.

Trumpington, B.

Wynford, L.

Vivian, L

Young, B.

Resolved in the affirmative, and amendment agreed to accordingly.
7.12 p.m.
Clause 91 [Authorisations to interfere with property etc.]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 25:
Page 33, line 32, at end insert ("or section (Exceptions to section 91)").
On Question, amendment agreed to.
Lord Rodgers of Quarry Bank Lord Rodgers of Quarry Bank moved Amendment No. 26:
Page 33, line 33, leave out ("officer") and insert ("circuit judge").
7.13 p.m.
On Question, Whether the said amendment (No. 26) shall be agreed to?
Their Lordships divided: Contents, 158; Not-Contents, 137.

Division No. 2

CONTENTS

Acton, L.

Dean of Beswick, L.

Addington, L.

Desai, L.

Alderdice, L.

Donaldson of Kingsbridge, L.

Alexander of Weedon, L.

Donaldson of Lymington, L.

Annan, L.

Elis-Thomas, L.

Archer of Sandwell, L.

Elton, L.

Ashley of Stoke, L.

Ezra, L.

Avebury, L.

Falkland, V.

Bamett, L.

Fitt, L.

Bath,M.

Geddes,L.

Beaumont of Whitley, L.

Geraint, L.

Belhaven and Stenton, L.

Gibson, L.

Berkeley, L.

Gladwyn, L.

Bingham of Comhill, L.

Gregson, L.

Bledisloe, V.

Grey, E.

Bridge of Harwich, L.

Hacking, L.

Broadbridge, L.

Halsbury, E.

Brooks of Tremorfa, L.

Hampton, L.

Browne-Wilkinson, L.

Hamwee, B.

Bruce of Donington, L.

Hankey, L.

Callaghan of Cardiff, L.

Harmsworth, L.

Calverley, L.

Harris of Greenwich, L. [Teller.]

Carlisle, E.

Hayhoe, L.

Carnegy of Lour, B.

Healey, L.

Carr of Hadley,L

Hemingford, L.

Castle of Blackburn, B.

Hollick, L.

Charteris of Amisfield, L.

Holme of Cheltenham, L.

Chorley, L.

Hooson, L.

Clancarty, E.

Hope of Craighead, L.

Cledwyn of Penrhos, L.

Howell, L.

Cocks of Hartcliffe, L.

Howie of Troon, L.

Craigavon, V.

Hughes, L.

Craigmyle, L.

Hutchinson of Lullington, L.

Cross, V.

Hylton-Foster, B.

Dahrendorf, L.

Jeffreys, L.

Darcy (de Knayth), B.

Jeger, B.

David, B.

Jenkins of Hillhead, L.

445

Jenkins of Putney, L.

Rodgers of Quarry Bank, L.

Kennet, L.

Rogers of Riverside, L.

Kilbracken, L.

Roll of Ipsden, L.

Kimball, L.

Russell, E.

Kinloss, Ly.

St. Davids, V.

Kirkwood, L.

Sefton of Garston, L.

Lawrence, L.

Selbome, E.

Lester of Heme Hill, L.

Serota, B.

Lincoln, Bp.

Shaughnessy, L.

Lloyd of Berwick, L.

Simon, V.

Lockwood, B.

Simon of Glaisdale, L.

Longford, E.

Slynn of Hadley,L.

Lucas of Chil worth, L.

Spens, L.

Mackie of Benshie, L.

Stallard, L.

Macleod of Borve, B.

Stoddart of Swindon, L.

McNair, L.

Strabolgi, L.

McNally, L.

Stafford, E.

Mar and Kellie,E.

Taverne, L.

Marlesford, L.

Taylor of Blackburn, L.

Masham of Ilton, B.

Taylor of Gryfe, L.

Merlyn-Rees, L.

Thomas of Gresford, L.

Methuen, L.

Thomas of Gwydir, L.

Mishcoa L.

Thomas of Swynnerton, L.

Molloy, L.

Thomas of Walliswood, B.

Monson, L.

Thomson of Monifieth, L.

Monteagle of Brandon, L.

Thurso, V.

Mountgarret, V.

Tope, L. [Teller.]

Munster, E.

Tordoff, L.

Murray of Epping Forest, L.

Turner of Camden, B.

Nicol, B.

Varley, L.

Norton, L.

Wallace of Saltaire, L.

Ogmore, L.

Walton of Detchant, L.

Pender, L.

Wharton, B.

Perry of Walton, L.

White, B.

Plant of Highfield, L.

Wigoder, L.

Prior, L.

Wilberforce, L.

Rawlinson of Ewell, L.

Williams of Crosby, B.

Rea,L.

Winchilsea and Nottingham, E.

Redesdale, L.

Winston, L.

Rees-Mogg, L.

Wolfson, L.

Ritchie of Dundee, L.

Wright of Richmond, L.

Rochester, L.

Wynford, L.

NOT-CONTENTS

Addison, V.

Chalker of Wallasey, B.

Ailsa, M.

Chelmsford, V.

Allenby of Megiddo, V.

Chesham, L. [Teller.]

Anelay of St. Johns, B.

Clanwilliam, E.

Annaly, L.

Clark of Kempston, L.

Ashboume, L.

Colwyn, L.

Astor of Hever, L.

Courtown, E.

Attlee, E.

Craig of Radley, L.

Balfour, E.

Cranbome, V. [Lord Privy Seal.]

Beaverbrook, L.

Cumberlege, B.

Beloff, L.

Dean of Harptree. L.

Biddulph, L.

Denbigh. E.

Birdwood, L.

Denham, L.

Blaker, L.

Denton of Wakefield, B.

Blatch, B.

Derwent, L.

Boardman, L.

Dixon-Smith, L.

Bowness, L.

Downshire, M.

Brabazon of Tara, L.

Dundonald, E.

Bridgeman, V.

Eden of Winton, L.

Brightman, L.

Elles, B.

Brigstocke, B.

Elliott of Motpeth, L.

Brookes, L.

Feldman, L.

Brougham and Vaux, L.

Ferrers, E.

Butterworth, L.

Rather, B.

Byford, B.

Fraser of Carmyllie, L.

Cadman, L.

Gainford, L.

Caithness, E.

Gardner of Parkes, B.

Campbell of Alloway, L.

Gisborough, L.

Campbell of Croy, L.

Glenarthur, L.

Carnock, L.

Goschen, V.

Chadlington, L.

Gray, L.

446

Harding of Petherton, L.

Moyne, L.

Hardwicke, E.

Napier and Ettrick, L.

Henley, L.

Nelson, E.

Hogg, B.

Northesk, E.

Holdemess, L.

O'Cathain, B.

HolmPatrick, L.

Oxfuird, V.

Hood,V.

Parkinson, L.

Hooper, B.

Peel, E.

Howe, E.

Pilkington of Oxenford, L.

Inglewood, L.

Platt of Writtle,B.

Jenkin of Roding, L.

Quinton, L.

Kilpatrick of Kincraig, L.

Rankeillour, L.

Kitchener, E.

Reay, L.

Knights, L.

Rennell, L.

Laing of Dunphail, L.

Renton, L.

Lane of Horsell, L.

Renwick, L.

Layton, L.

Rodney, L.

Leigh, L.

Romney, E.

Lindsay, E.

Rotherwick, L.

Liverpool, E.

Saatchi, L.

Long, V.

Saltoun of Abemethy, Ly.

Lucas, L.

Seccombe, B.

Lyell, L.

Shaw of Northstead, L.

McColl of Dulwich,L.

Shrewsbury, E.

McConnell, L.

Soulsby of Swaffham Prior, L.

Mackay of Ardbrecknish, L.

Stewartby, L.

Mackay of Clashfern, L. [Lord Chancellor.]

Strange, B.

Strathcarron, L.

Mackay of Drumadoon, L.

Strathclyde, L. [Teller.]

Marsh, L.

Sudeley, L.

Massereene and Ferrard, V.

Taylor of Warwick, L.

Merrivale, L.

Trefgarne, L.

Miller of Hendon,B.

Trumpington, B.

Montagu of Beaulieu, L.

Vivian, L.

Montgomery of Alamein, V.

Wade of Chorlton,L.

Mottistone, L.

Wise, L.

Mountevans, L.

Wrottesley, L.

Mowbray and Stourton, L.

Young, B.

Resolved in the affirmative, and amendment agreed to accordingly.
The Earl of Courtown: My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion, I suggest that the Report stage begins again at twenty-five minutes past eight o'clock.
Moved accordingly, and, on Question, Motion agreed to.

Public Entertainments Licences (Drug Misuse) Bill
7.24 p.m.
Brought from the Commons; read a first time, and to be printed.

United Nations Personnel Bill
Brought from the Commons; read a first time, and to be printed.
Pharmacists (Fitness to Practise) Bill
Brought from the Commons; read a first time, and to be printed.

Education (Special Educational Needs) Bill [H.L.]
7.25 p.m.
Read a third time.
Lord Campbell of Alloway: My Lords, I beg to move that the Bill do now pass.
Moved, That the Bill do now pass.—(Lord Campbell of Alloway.)
The Lord Bishop of Lincoln: My Lords, perhaps I may express my support for the noble Lord's Bill. It seems that the intention is wholly worthy, but we need to be assured that pupils who, for various reasons, may have some form of disability are not disadvantaged in any way.
There are some children whose parents and guardians, no doubt for a variety of reasons, do not act on behalf of their children and ensure that they receive their full legal entitlement. There are no obvious problems about enabling those children who can understand the proceedings to represent themselves when parents or guardians do not do so. What we ought to be concerned with is the moral issue of entitlement; how we may enable children to receive what is legally and morally theirs.
Clearly, no one wishes to create a situation in which children are set against their parents or guardians. But, equally, it is important to acknowledge that children have an entitlement for their cause to be pursued. We need to recognise that children who do not necessarily have all the gifts of an active intellectual life can and do have real insights into life itself. They know when they are patronised, when they are not recognised or when they are summarily dismissed.
It is deeply important that the value of each child or pupil is recognised, whether it is at statementing or at a tribunal. We do not fight for them or on their behalf, but we do fight with them, ensuring that they learn and grow. Therefore, we need to ensure that the needs of such children are met, that we have sufficient trained teachers to teach them, and that we have a system which provides them with specialist help when they need it. We need their insight and we need to recognise and rejoice in their contribution and not prejudge it.
We may need also to provide more effective support so that parents feel confident in taking up issues on behalf of their children. Many parents fear tribunals and hearings, and if a special child then becomes a parent he will need help to take up the rights of his children. Many highly articulate and educated parents have trouble filling in forms and dealing with procedures. Perhaps I may make a plea that the Government consider how best to support parents of such children in order to ensure that they receive what is their due.
Lord Addington: My Lords, the Bill addresses a specific point—it is the fact that a child has individual rights and is not merely an extension of the parents. The Government did not intend that to occur, but children's
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rights stopped appearing in legislation. The noble Lord's Bill changes that situation and brings back children's rights for all to see. We had arguments about whether certain children should be included and so forth. The noble Lord has ended up, under a certain degree of pressure, going for an answer which is probably better because it is simpler—namely, that all children should have their rights and views represented when it comes to dealing with their own education. Surely, that is something which should be dealt with, if not in this Bill, at least in legislation very soon. I hope that it is in this Bill.
7.30 p.m.
Lord Morris of Castle Morris: My Lords, in conformity with the conventions of your Lordships' House, I must begin by reciting my mantra and saying that, as this is a Private Member's Bill, my party takes a neutral stance on it and I speak for myself alone and not as representing the Labour Party. That is a pity, since I feel like the Irishman passing a pub outside which a group of drunks were deciding a matter of dispute between them in the traditional manner. Tapping one of them on the shoulder, he inquired nostalgically, "Is this a private fight or can anyone join in?"
The fight, it seems to me, is between the noble Lord, Lord Campbell of Alloway, and his noble friends in the Government rather than, in the usual way, across the Floor of the House. We are indebted to the noble Lord, Lord Campbell of Alloway, for introducing and persisting with this Bill because he has, in my view, improved it substantially since Second Reading, in particular by removing the phrase "if of sufficient understanding", which several of us pointed out to him was a cause of offence. Yet the objective of the Bill remains the same—namely, to establish conditions in which it will be possible for children to be given a full and independent voice in the appeal proceedings. There are those who believe that the noble Lord's Bill will not have this effect; I suspect that the noble Lord the Minister would number himself among them.
The Bill is designed to take away appeals from the SEN Tribunal and place them far more in front of the High Court. While not wishing to suggest that lawyers may have a financial interest in having cases before the High Court rather than the tribunal—and again it is to the credit of the noble Lord, Lord Campbell of Alloway, that he has scotched that rumour remarkably effectively and well as the Bill has passed through your Lordships' House—there are those who argue that it is unhelpful to have a body, the High Court, which was not designed to hear SEN appeal cases, taking away appeals from the very body, the SEN Tribunal, which was specifically designed for that purpose. If the noble Lord, Lord Campbell, wished to give children additional appeal rights, they argue, he should have started at the SEN Tribunal and not at the High Court. He will doubtless wish to deal with that issue when he speaks.
Yet even after the Bill's Committee stage there continues to be much concern by local authorities about the operation of the tribunal. It may be that the noble Lord's attempt to move things to another plane would

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assist the tribunal rather than hinder it. In particular, it is becoming susceptible to organised campaigning by certain pressure groups.
I have received an unsolicited letter from Dudley local education authority which makes this case well. An SEN Tribunal case is quoted in which a boy aged seven who suffers from epilepsy, which is well controlled by medication, has some mild learning and behavioural difficulties. On admission to primary school at the age of five, additional welfare support was provided to the school for three pupils while statutory assessments were completed following school referral. That was in February 1994.
The assessment was completed and the note-in-lieu issued in April 1995. Informal support was then removed from the school. The authority considered that the mainstream school could meet the pupil's needs from its normal resources. There was therefore an appeal to the SEN Tribunal in June 1995. Time goes on like an ever-rolling stream. In November 1995 the tribunal ordered the case to be remitted to the LEA to consider whether to determine special educational provision.
In December 1995 the LEA issued a notice to reassess the pupil's needs. This was completed in February 1996, resulting again in a note-in-lieu indicating that the pupil was making satisfactory progress in the basic skills and that his epilepsy was well controlled by medication.
That would have seemed to be the end of it; but no, there was appeal number two to the SEN Tribunal in June 1996 and the tribunal ordered that the LEA should make and maintain a statement based on the premise that the child's performance was erratic, that the level of support provided by the school would be reduced on transfer into Key Stage 2 and that he required daily support.
The LEA issued a statement providing one hour per day welfare support, thus complying with the tribunal order. This level of support was well in excess of the existing support for the pupil of 2 × 30 minutes group withdrawal and 2 × 30 minutes classroom support.
That would have seemed to be the end of the matter; but no, there was appeal number three to the SEN Tribunal in November 1996. This appeal is based on the parents' view that, as the school has reduced its internal support to the LEA, the LEA's provision of one hour per day is not sufficient. In the words of the press, the case proceeds.
The increase in litigiousness is alarming. I note the concern expressed (judiciously) in the Annual Report of the SEN Tribunal for 1995-96. I quote from the report's introduction:
"The year 1995-96 was the Tribunal's first full year of work, after the gradual build-up during the previous year. At the start of the second year, immediately after the school summer holidays, there was an unexpectedly heavy influx of new appeals. For a time, an already over-stretched secretariat was unable to keep pace, and there were consequent delays in processing the cases. However, the intake of work slackened, and it was possible to recruit and train more staff, some of whom are now working in Darlington. All the same, accommodation problems meant that there was a continuing need to ask staff to work overtime. Towards the end of the year, we were
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receiving some 35 new cases each week, a figure considerably above the original estimate of the Tribunal's workload. It also became apparent during the year that more chairmen (sic) and members were needed to adjudicate the volume of appeals we were receiving. Further appointments were made, although only late in the year."
It is for the noble Lord, Lord Campbell of Alloway, to convince his noble, honourable and right honourable friends that his Bill will alleviate that condition rather than confound it and lead to even more work for the tribunal year by year, and for the High Court as well, which could act to the detriment of the child and family or in their favour. It is for the noble Lord, Lord Campbell of Alloway, to convince the Government of that.
Meanwhile I am happy to continue to support the thrust of his Bill and I am very willing to be convinced that it would achieve its objective without increasing these complexities and delays. I fear that his noble friend the Minister may be harder to persuade.
The Minister of State, Department for Education and Employment (Lord Henley): My Lords, perhaps I may start by reassuring the House and the noble Lord, Lord Morris of Castle Morris, that this Bill does not represent a fight, whether public or private, between myself and the noble Lord opposite or between my noble friend, myself and the Government. I very much commend the manner in which my noble friend has moved this Bill and taken it through both Houses. We have had some very useful discussions, even if we have not necessarily always agreed.
I have already stated the Government's general opposition to the thrust of the Bill. While the principles behind my noble friend's Bill have much to commend them, these principles are already enshrined in the appropriate legislation and in the code of practice on the identification and assessment of special educational needs. Those who are involved in child assessment and provision and those involved in an appeal about them to the SEN Tribunal are already exhorted to ensure that the child's views are known and represented. I can reassure the right reverend Prelate that the child's needs are there represented and that the local authority is actively encouraged to listen to the views of the child. The tribunal itself is concerned solely—as is right—with the child's needs, and that is what it is established for.
Children with special educational needs are not—as I think has been suggested—disadvantaged by the current system. They are the only children to have their own tribunal which, unlike other forms of address such as local appeal tribunals, the Secretary of State or the courts, is expert in the matters of special educational needs. I believe that this Bill attacks the principle that so far as is possible the tribunal should be the final arbiter in these matters by at least implicitly opening up the prospect of much further subsequent challenge to the courts.
I reassure the noble Lord, Lord Morris of Castle Morris, that the SEN Tribunal and its members and chairman (sic)—I hope I may put it like that to the noble Lord; I know how politically correct he is—are independent. The noble Lord knows that they are independent. I know the noble Lord knows well the

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work that they do and has great admiration for it. Many of them have experience of working in LEAs. The decisions of the tribunal are, I believe, in the interests of each child before it. I do not think it is correct—I suspect I misunderstood the noble Lord if I understood him to say this—to say that it is susceptible to lobbying from any quarter. I am sure the noble Lord would not wish that impression to be gained.
Lord Morris of Castle Morris: My Lords, may I withdraw the word "susceptible" for fear of misinterpretation and substitute for it another word which will come to me in a moment, and say it is subject to pressure from outside?
Lord Henley: My Lords, I am only sorry that we do not have the benefit of the expert advice of the noble Lord, Lord Quirk, who might be able to advise us on the appropriate use of language. I take the point of what the noble Lord has to say. The various words he has used can remain on the record.
I hope I may illustrate what I believe is the success of the tribunal in meeting children's needs. It has, since September 1994, registered something in the region of 3,500 appeals. Only 72 of its decisions have been appealed to the High Court on a point of law and in only 10 of those 72 were the tribunal's decisions remitted for rehearing or conceded. If that does not demonstrate that the tribunal is doing a good job, I do not know what does. I believe—I say this with some care, and I do not wish in any way to offend my noble friend—this Bill would have the danger of making the tribunal more litigious and more formal. I and many others, both inside and outside government, do not want that to happen.
I address one further matter that has not been raised this evening, but I think would be of interest to my noble friend, relating to the question of legal representation at hearings. My noble friend will no doubt be aware of the president of the tribunal's statement on 16th December about representation at tribunal hearings, which is directly relevant to Clause 4(1) of this Bill. I said at Second Reading I would not want to press further on this without knowing the outcome of the president's consultation. The president has now written to me in the department about the conclusions arising from his consultation. He confirms that the regulations are clear in their intention that the parties should be represented in the main by one person. He does not want to compromise the informal approach of tribunals by giving legally represented parties the right to have both counsel and a solicitor, but he will consider the merits of each case.
Alternatively, where parents would like their solicitor to attend a hearing—for example, where they have established a good relationship with him and do not know counsel—he may attend a hearing as a befriender. That seems to me to be a perfectly good solution and strikes the right balance between maintaining informality at hearings while allowing additional support for parents. I hope my noble friend does not mind my putting that message from the president of the tribunal on the record because I think it is an important
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matter of concern to the House. Having repeated my views on the Bill, I say to my noble friend that I, of course, understand very much the motives behind his moving the Bill, but I have to say yet again that the Government cannot offer their support to it.
7.45 p.m.
Lord Campbell of Alloway: My Lords, I must not take too much time. One ought to pay tribute to the procedures of the House. They enable a Private Member's Bill to be debated fully and with expedition. However, if this Bill be but a means to an end, so be it. Already, as the noble Lord, Lord Morris of Castle Morris, has mentioned, it has had some beneficial effect in certain quarters. Some day, in some form, the substance of this Bill will reach the statute book; of that, there is no question.
I thank the right reverend Prelate the Bishop of Lincoln for coming to speak on the moral entitlement, the core principle of this Bill, and the reason why it shall reach the statute book, and to speak for the Church, which is of crucial and cardinal importance. So your Lordships have not toiled in vain. Some Cabinet decision will have to be taken some time under some government which overrides the resistance of Sanctuary Buildings whence come the instructions of my noble friend the Minister.
I thank my noble friend the Minister for what he had to say. I do not agree with any of it, as he knows. I understand that he has to restate the Government position. I am not at all happy about the way the tribunal is working. I do not want to enter into an argument— for the sake of the record, a counter argument—at this time of night on this occasion; but I do not accept that all is as well as my noble friend the Minister would suggest. However, I thank him for the good humour and patience with which he has conducted this debate. I thank the noble Lord, Lord Addington, who spoke tonight and who has spoken cogently throughout this Bill on behalf of the Liberal Party. I also thank my noble friend Lady Darcy (de Knayth) who has spoken from the Cross Benches.
The interest in this Bill is such that it has gone far beyond this House. It is interesting that the majority of noble Lords who have spoken on this Bill are hereditary Peers. In particular the speech of the right reverend Prelate the Bishop of Lichfield and of the noble Lord, Lord Morris of Castle Morris, at Second Reading were veritable beacons of inspiration and enlightenment and are worthy of the attention of any government and of another place at any time. Another place in due course may well wish to know why Dean's Yard and Sanctuary Buildings, so close to one another, are yet so many miles apart. It may wish to know why representations of the right reverend Prelates the Bishop of Lichfield, the Bishop of Ripon and the Bishop of Carlisle and those of Mencap have been rejected out of hand. Another place may wish to know that. It may also wish to know why, in our predominantly Christian, multi-religious society no "theist", atheist or agnostic objection has been raised to this Bill or to the core principle of it.

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Although my noble friend would not agree, this Bill, in effect, in all its aspects reflects the consensus of basic sociological moral values. I thank all noble Lords again for all the trouble that they have taken. I commend the Bill to the House.
Bill passed, and sent to the Commons.

Dignity at Work Bill [H.L.]
7.50 p.m.
Lord Monkswell: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Monkswell.)
On Question, Motion agreed to. House in Committee accordingly.
[The VISCOUNT ALLENBY OF MEGIDDO in the Chair.]
Clause 1 [Right to dignity at work]:
Lord Monkswell Lord Monkswell moved Amendment No. 1:
Page 1, line 9, leave out subsection (2) and insert—
("(2) Subject to section 5 of this Act, an employer commits a breach of the right to dignity at work of an employee if that employee suffers during his employment with the employer harassment or bullying or any act, omission or conduct which causes him to be alarmed or distressed including but not limited to any of the following—

(a)behaviour on more than one occasion which is offensive, abusive, malicious, insulting or intimidating;

(b) unjustified criticism on more than one occasion;

(c) punishment imposed without reasonable justification; or

(d) changes in the duties or responsibilities of the employee to the employee's detriment without reasonable justification.").

The noble Lord said: I beg to move the amendment standing in my name. This amendment is to leave out Clause 1(2) and insert the redrafted subsection (2).
During the Second Reading debate a number of comments were made which suggested that there was some lack of clarity about this subsection. I am grateful to my advisers, and in particular to the noble Lords, Lord McCarthy and Lord Wedderburn, for their instructive advice in drafting this amendment.
The new subsection (2) identifies that harassment and bullying would constitute a breach of the right to dignity at work, and also gives some examples, which are not exclusive, that could be construed as conduct breaching the right to dignity at work. This right pertains during the employee's employment rather than in the course of his employment. I am advised that this will prevent legal difficulties.
Subparagraph (a) lists some aspects of behaviour which should have no place in a work context, which, if repeated, would constitute harassment or bullying. Subparagraph (b) identifies criticism which, if justified, would be acceptable in a work context, but if unjustified and repeated would breach the right to dignity at work.
Because these things can happen accidentally, it is felt that they should have to occur on more than one occasion to fall foul of this legislation. However, subparagraphs (c) and (d), which identify discrete situations with specific consequences—in fact, punishment without reasonable justification or changes in duties or responsibilities to the employee's detriment without reasonable justification—do not have to be repeated to be construed as breaches of the right to dignity at work.
Lord McCarthy: I am sure the Committee can agree to pass this stage of the Bill. At Second Reading the Government did not seek to deny, and the noble Lord, Lord Lucas, said positively, that it was a real and growing problem with which the Bill seeks to deal. He did not think that we should have this Bill, indeed perhaps any Bill, but it was accepted in the House at Second Reading that the Bill is attempting to deal with a real and growing problem. The only criticisms which were of any substance at that time did relate to the clause which is now amended. I am bound to say that those criticisms have now been effectively met by the amendment which has been put forward by the noble Lord.
We were worried that the list of examples might be thought to be all inclusive, or even additive, so that somebody might argue that you had to offend against more than one of them. That is made quite clear on the face of the clause now and it cannot be objected to on those grounds.
On this side of the Committee it was also thought that some forms of unlawful bullying were described in rather different ways. Some had to be done persistently, and some could be justified and some could not be justified, and we could not see quite why the noble Lord had put it in this way. Now he has clarified that so we can see quite clearly why he thinks that some examples require persistence, more than one incidence, whereas others are capable of justification.
The noble Lord also said—in some ways this was the most important point to make—that there was a great deal to be said for an effective general definition, of what a breach of dignity was to be in terms of the Bill, and we now have an excellent definition, a general definition, of what a breach of dignity is.
Therefore, I think that the Committee could agree, and I hope that we shall see the Bill passed through its remaining stages in this House as soon as possible, and it may even get into the other place during the dying days of this discredited government.
Lord Rochester: I was unable to attend the Second Reading of the Bill, but I have read with interest the whole of the report on it. This is not the occasion on which to speak at any length on the principle underlying the Bill, but I hope the Committee will allow me to say that, like the noble Lord, Lord Haskel, at Second Reading, I approached it with mixed feelings. I am not altogether convinced that what it seeks to achieve cannot already be accommodated by Acts that are already in existence, particularly the Health and Safety at Work etc. Act 1974 and the Employment Rights Act 1996.

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There is also the Government's Protection from Harassment Bill, otherwise known as the stalking Bill, under which, as the noble Lord, Lord Lucas, confirmed at Second Reading, it will be an offence to pursue a course of conduct which causes a person to feel harassment or distress. It is good to know that that Bill is to have its Second Reading next Friday.
Having said that, I should like to make it plain that I have every sympathy with the motive of the noble Lord, Lord Monkswell, in bringing this Bill forward, for, as the survey commissioned by the Institute of Personnel and Development and other evidence have demonstrated, the incidence of bullying at work is clearly a serious problem. Moreover, now that the Bill has been approved in principle at Second Reading, it is incumbent on us all to do what we can to improve it before it leaves the House.
Turning to the amendment itself, the substitution of the words in it for subsection (2) of Clause 1, is in my view, a considerable improvement and takes account of a number of the criticisms voiced by the noble Lord, Lord McCarthy, at Second Reading. Specifically, there is now more consistency of definition, since, to be actionable, behaviour which is offensive or abusive, or unjustified criticism, has to occur in each case on more than one occasion. Further, it is now plain that the instances given in the clause of bullying or other unacceptable behaviour are not to be regarded as exclusive, but examples only within an overall definition of actionable conduct. Accordingly, I am glad to support the amendment.
Baroness Turner of Camden: I rise briefly to support the amendment moved by my noble friend this evening. Unfortunately, I also was not able to be at the Second Reading debate, but I have read Hansard since. I agree with the principle of the Bill, of course, as the noble Lord, Lord Rochester, has indicated. Bullying has become a major problem in many workplaces and, in my view, it is the job of those who make legislation in a civilised society to endeavour to protect vulnerable people.
Unfortunately, as a result of successive waves of legislation, employees have become more and more vulnerable and have less and less protection. The Bill, with the amendment, seeks to provide protection. The amendment improves the wording of the first part of the Bill. I therefore commend it to the Committee. I hope that the Bill will leave this place quickly so as to get on the statute book as soon as possible.
8.00 p.m.
Lord Lucas: I am delighted that the amendment pleases the noble Lords, Lord Rochester and Lord McCarthy. It must therefore rank as a good thing. So it saddens me that we still have some small faults to find with the definition as proposed by the noble Lord, Lord Monkswell. They centre upon two aspects of it. The first arises because there is no requirement in the clause that the employer's conduct should have been unreasonable or that the employee's conduct should have been reasonable. The second is that, because of the way in which the clause is drafted, the illustrations that come
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at the end of the definition are just that: they have no particular force due to the immediately preceding words. Once the industrial tribunal found that the individual had been caused genuine alarm or distress at work, however unreasonable, unavoidable or insignificant, it would have no discretion but to find that the protection of the Bill did not apply.
Perhaps the noble Lord, Lord Monkswell, will indulge in a fantasy for a moment and imagine that he was a Minister under a new Labour Government—the new Labour Government being the fantastic part of course—and that one of his officials had presented him with a memorandum which he found unacceptable in some way. It might have been badly drafted—that is another fancy; it does not happen in practice—and he had, in his most polite fashion, told that official what he thought of the documents, but the official had, nonetheless, been upset, and was distressed as a result of being told that about the work upon which he had spent a great deal of time.
As proposed under the clause, the official would, nonetheless, have the right to take the Government, and perhaps also the noble Lord, Lord Monkswell, to the industrial tribunal for causing him distress. If one were to have any Act along those lines, there must be some mechanism for ensuring that complaints are reasonable, justified and proportional, and that the employer has some proper responsibility for what has taken place.
Legislation is not the answer to all ills. In many cases the problems are too personal and subjective for statute to provide a practical solution. On Second Reading we discussed the assistance that legislation can and does give in particular circumstances and, as the noble Lord, Lord Rochester, said, may in the future. In other cases what is needed is a culture change within the organisation itself, a recognition of the issues and procedures, informal and formal, for dealing with problems that arise. Many companies operate grievance procedures for handling such problems. The noble Lord's union (the MSF) is to be congratulated on raising the profile of the issue and on offering practical advice for resolving problems. The Government welcome that approach. We firmly believe that that is the way to achieve results.
Lord McCarthy: What the noble Lord says about reasonableness, I should have thought was met in Clause 5. We talk there about the employer's defence. With respect, it has reasonableness written all over it. Under Clause 5(l)(a), when the employer is putting forward his defence he can say that he has taken all reasonable steps to implement and enforce the policy. Under Clause 5(l)(b), the act or acts complained of are repudiated by the competent person as soon as is reasonably practicable. Under Clause 5(l)(c), as soon as is reasonably practicable the employer takes all such steps as are reasonably necessary. So it goes on.
The argument that the employer has acted reasonably is built into the central core of the employer's defence. I should have thought that that was the proper place to put it. Of course if the Minister would like to tell us

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how he would like to see the Bill further amended, I am sure that we would be pleased to see what could be done.
Lord Lucas: I should be happy to address the point that the noble Lord has just raised. It would be better if I did so by letter to the noble Lord and to the other noble Lords who have spoken this evening. There is clearly a difference between our interpretation of the Bill and that of the noble Lord. I am happy to ensure that that is resolved before the next stage.
Lord Monkswell: I thank everyone who has contributed to the debate. I look forward to receiving the Minister's letter suggesting further improvements to the Bill. We have another couple of stages to go.
I shall respond to the debate on the amendment. First, I am glad that my noble friend Lord McCarthy feels that all the criticisms have been met by the amendment, and that we now have a good, general definition. I thank the noble Lord, Lord Rochester, for his support for the amendment. With the leave of the Committee, I shall respond to the points that he made about the fact that we currently have legislation. Employers also have a common law duty to look after the welfare of their employees. Unfortunately the mechanisms that the Government listed on Second Reading are felt not to be satisfactory for resolving the problems. I suspect that, were nothing to happen in legislation over a period of, perhaps, five or 10 years, case law would catch up and we would achieve an effective redress for this problem. One of the reasons for introducing the Bill is to ensure that some action is taken rather more quickly than that.
I thank my noble friend Lady Turner as well. I understand why she could not be here for Second Reading, and I appreciate her being here tonight. I welcome her support for the amendment. The noble Lord, Lord Lucas, identified as a problem the lack of a "reasonableness" argument. My noble friend Lord McCarthy rebutted that point effectively. The noble Lord, Lord Lucas, then put forward a hypothetical case. He said that if a Government Minister were critical of the advice that he had received from his advisers, the advisers might have a case against him. I think they would have if the Minister's criticism was unreasonable and unjustified, and he treated his advisers in an appalling way. He should be taken to an industrial tribunal. But that is not the object of the Bill. The object of the Bill is to ensure that preventive action is taken by employers to ensure that bullying does not take place.
The noble Lord said that there was a need for a cultural change. There is such a need. I hope that this legislation will be part of the process of ensuring that that cultural change takes place rather more quickly than would otherwise be the case. I am grateful to him for the compliments he paid to my union and other unions for the effective work that they do in this field. I hope that that work will form a basis for the actions that good employers will take. Good employers using good practice should work with progressive unions to ensure that they have the right policies and practices within their companies.
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Virtually everyone who has spoken has pointed out that the amendment will improve the Bill. I am glad about that. As I said, I look forward to receiving advice from the Minister as to how we can further improve the Bill. That may or may not be possible. There are another couple of stages at which we could take amendments. In the meantime, I commend the amendment to the Committee.
On Question, amendment agreed to.
Clause 1, as amended, agreed to.
Remaining clauses and schedules agreed to.
House resumed: Bill reported with an amendment.
Baroness Miller of Hendon: My Lords, I beg to move that the House do now adjourn during pleasure until 8.25 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.11 to 8.25 p.m.]

Police Bill [H.L.]
Consideration of amendments on Report resumed on Clause 91.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 27:
Page 33, line 37, at end insert—
("() Where the action taken would involve an entry on or interference with property or with wireless telegraphy at—

(a) the place of business of a professional legal adviser; or

(b) another place in or at which communication subject to legal privilege is taking place between a professional legal adviser and his client,

the authorising officer and, if applicable, any other person who is required to approve action under this section must (in addition to the other requirements of this section) be satisfied that it is likely that an abuse of legal privilege will be occurring at the place which is the subject of the application, and, in this section, the term "subject to legal privilege" has the same meaning as that given to it in section 10 of the Police and Criminal Evidence Act 1984.").
The noble Lord said: My Lords, I rise to move Amendment No. 27 and there are probably some consequential amendments. I shall speak also to Amendments Nos. 28 and 40. These amendments are concerned with the extremely important issues of legal professional privilege and of privilege for other forms of communication which in the past have been protected by Section 10 of the Police and Criminal Evidence Act 1984. I refer to communications involving journalists, doctors, and comparable people.
This matter was mentioned on a number of occasions in the lengthy debate on Amendment No. 24. That was very worthwhile because it is evident that there is very considerable concern about the risk, in particular to legal professional privilege, of what the Government are proposing. I confess that I have not had time to do a textual analysis enabling me to say what will be the effect, if any, of the amendments which have been carried on legal professional privilege and on Section 8 of the Police and Criminal Evidence Act. I rather suspect that they will not affect it.
At the Committee Stage I moved amendments which gained some support around the Chamber but which I had to withdraw because they were defective in the sense that they would have prohibited communication between, for example, a lawyer and his client even if that communication had originated in the client's home rather than on the lawyer's premises. We had to think very carefully about how to achieve legal professional privilege.
The conclusion to which we came was that we should recognise the fear which Government Ministers expressed about the abuse of legal professional privilege. We discussed in Committee the whole issue of iniquity where one has, not to put too fine a point on it, a crooked lawyer who is seeking to break the law or evade the penalties of the law in the way that he communicates with his client. We thought that we ought to take account of that possibility in our amendments.
Amendment No. 27 relates to legal professional privilege and Amendment No. 28 to the others. We provide that the authorising officer or, having had great foresight, any other person, who is required to approve action under this clause—that, of course, now means one of the commissioners—has to be satisfied that it is likely that an abuse of legal privilege will be occurring at the place which is the subject of the application. We go on to define "subject to legal privilege".
I believe that the amendment meets the objections which the Government raised to the way in which we approached legal professional privilege in the past. I believe that it deals with the problem which was raised of abuse of legal professional privilege. It is an absolutely essential safeguard for the way in which law is conducted in this country. I recall that the noble Lord, Lord Thomas of Gresford, spoke movingly about his work in countries where, although they purport to conform to the British legal system, a lawyer cannot be sure when talking to his client that he is not being bugged and improper use is not being made of what he is saying. It is essential that we should keep that kind of banana republic law out of this country. I believe that these amendments do so. I beg to move.
8.30 p.m.
Lord Hacking: My Lords, in moving this amendment, the noble Lord, Lord McIntosh, said that he had not had time to assess the effect of the two amendments that your Lordships approved but that he rather suspected—I think I correctly quote his words— that legal privilege would not be affected.
I try to bring him some comfort in opposing his amendment by saying that there is a double protection now supplied. First, there is the commissioner. The intrusion into a lawyer's office is a matter which the commissioner, under the amendment successfully moved by the noble Lord's party, will take into account. I am not sure that both protections will remain in the Bill after it has been through your Lordships' House but certainly as it stands at the moment there is the second protection of the judge under the amendment successfully moved by the Liberal Party. Therefore I approach this amendment now with some care.
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I do so because there are all manner of persons in privileged positions who receive confidential information from those to whom they speak. For example, there are doctors. We heard in the intervention earlier in the debate about the position of doctors. There are clinical psychologists. There are all manner of people working in social services, and there are priests.
As a lawyer, I am uncomfortable that the legal profession—which performs a very important function in society in looking after clients—should be singled out when there are so many others who receive confidential information in privileged circumstances.
Lord McIntosh of Haringey: My Lords, I am grateful to the noble Lord for giving way. I said that Amendment No. 28 covers the other examples that he has given. It embraces those communications covered by Section 10 of the Police and Criminal Evidence Act 1984. I did not spell out in detail what is covered, although I referred to doctor's surgeries and to journalists. Amendment No. 28, which is a comparable amendment to Amendment No. 27, specifically covers the other kinds of confidential communication to which the noble Lord referred.
Lord Hacking: My Lords, I apologise to the noble Lord. I may be at fault because I was not in the House when he rose to move the amendment. Perhaps I missed some of his earlier words. I should like to look at them in Hansard and consider the matter again.
My immediate response is still the same; namely, that the amendment singles out special protection for the consultation between the legal profession and members of the public. On that ground and that ground alone, I remain uncomfortable with it.
Lord Thomas of Gresford: My Lords, the noble Lord, Lord Hacking, will know that legal professional privilege is a very specific type of privilege in any event. It has to be contrasted with the confidentiality that exists between the doctor and patient, the psychotherapist and patient, the priest and penitent and so on. It is a relationship recognised by the courts and has, up to now, been recognised because it is thought that such a degree of privilege between client and lawyer is in the public interest. Why is it in the public interest? It is because it is essential that the client should have confidence in his legal adviser at the point where he faces criminal charges. That is a confidence which must be maintained.
At times, listening to the debates on the Police Bill, it has seemed to me that there has been far too much mention of crooked lawyers who conspire with their clients to defeat justice. That may perhaps be a popular press point of view but it is very far removed from the truth. As I said in Committee, it must be appreciated that lawyers are concerned to advise clients in the clients' best interests. That does not necessarily mean to get them off. If a person has committed a criminal offence, it may be, if it is a very serious criminal offence, that the aim of the lawyer is to get him a life

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sentence as opposed to a hospital order, or a hospital order as opposed to a life sentence, or three years instead of five years.
It is essential that the lawyer can talk to his client and obtain, if he can, the truth from his client. The successful lawyer is the lawyer who gains the trust and confidence of his client so that he will tell him the truth. With that truth, if it is the truth, the lawyer can achieve an aim. It may be to get a not guilty verdict, a period of years or a life sentence—whatever that aim may happen to be.
What is iniquitous in this Bill as it is framed on the question of legal professional privilege is that it interferes in the very delicate balance that exists in an adversarial system. For better or worse, the feature of the criminal justice system of this country—in which noble Lords have many times expressed confidence—is that it is an adversarial system whereby one side puts forward its case, the other side does the same, and an impartial judge and perhaps a jury or finder of fact stands between the two and comes to a conclusion.
What happens when bugging is permitted? I have been involved in bugging cases. What would happen with bugging of lawyers' offices is that one side would obtain inside information of what his adversary was doing—the discussions he was having with his clients, the advice that he was giving, and the aims or goals they were seeking to achieve. That is putting into the hands of one side, and obviously into the hands of the police and prosecution, a weapon which, under our adversarial system as it has grown up, that side should not have.
That is why we agree with the amendment now put forward to confine the possibility of bugging lawyers' offices or any place where a communication subject to legal privilege is taking place to a situation where it is likely that an abuse of legal privilege will be occurring. That does not happen very frequently. It does not mean that a lawyer is giving advice to his client in a proper manner or receiving his confidence in a proper manner. It means that a lawyer has stepped over the boundary and become a criminal himself. That is where the abuse of legal privilege will arise. It is only in that extreme situation and in very rare cases—in my own experience over 30 years I can think of only two or three cases where a lawyer became involved in the criminality of his clients—that the bugging of a lawyer's offices should be allowed. In any other situation, the confidence and trust of the client in his adviser must be maintained. That is the foundation and basis of our system.
Lord Browne-Wilkinson: My Lords, the House now has a moderate number of people to consider amendments which, if they had come alone and were not succeeding what we had earlier this evening, would each have been regarded as of the highest importance.
I have had a chance to analyse a little the inter-relationship between what happened earlier this evening and what we have before us now. These amendments remain of very great importance because whether you have an approving judge, an approving commissioner or an approving chief constable, he has to
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approve the action within the parameters laid down by the Act. I am a lawyer but I am not going to bang on any more about legal privilege.
Your Lordships earlier heard that the doctors are enormously concerned about their confidences. You may not have heard it in the House but you will have read it in the press indirectly that the press is concerned about the confidential sources that it enjoys. Nobody has mentioned it so far but there is also the matter of priests and confessions. All such confidential relationships are covered by these amendments.
The purpose behind this is not to prevent the police taking real evidence where a privilege is being abused; if you can show an abuse of a privilege, you can move. What is not right is that all these confidential relationships—lawyer and client, doctor and patient, and all the rest—should be exposed to bugging without proof of suspected abuse. Poor, miserable amendment No. 40, which has so far evaded consideration, actually deals with the giving in evidence of privileged material against the accused—something which to a lawyer would be a very remarkable thing.
I am speaking to go on the record more than anything else, in the hope that the Government will consider this position. When the Police and Criminal Evidence Act was passed in 1984, enormous care was taken to try to adjust the balance between privilege on the one hand and the interests of the administration and enforcement of justice on the other. Very careful safeguards were put in for all these confidential relationships. The purpose of these amendments is to ensure that those carefully worked-out safeguards are preserved and the information obtained not in documentary form, which is what we have had up until now, but in oral form, transcribed and recorded so as to be available in the way that previously documents had been available.
I am here in this empty House simply to stay for amendments which are regarded as residuary but which are very important. I cannot help feeling that, if the Government applied their mind to this again, they would see that, true as it is that there must be the power to bug people who are abusing their position of confidence— that, as I understand it, this preserves—what ought not happen is that these positions of confidence should be more available to modern systems of artificial surveillance than they have been previously under the 1984 Act.
I hope that this will not be regarded as a little bit of flibbertigibbet. We are talking about confidential relationships which have been valued in our society and in our law.
8.45 p.m.
Lord Hutchinson of Lullington: My Lords, once again the whole House owes a tremendous debt of gratitude to the noble and learned Lord, Lord Browne-Wilkinson, whom I was glad to hear emphasising the vital importance of the debate that we are having in this House which is so sparsely attended. Unlike him, I shall bang on for a moment or two about the matter of legal privilege. I want to be perfectly clear about what I am banging on about so that we all know where we start.

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It is clear that the position of the Government is that it will not be unlawful under this Bill to secretly bug or break into barristers' chambers or lawyers' chambers or to bug police or prison cells when conferences are taking place with accused persons or with persons who are suspected of having committed offences. Secondly, there cannot be any exemptions to this. Thirdly—to get it out of the way—we are not dealing with iniquity; everybody agrees that if a lawyer is suspected of being involved in any form of criminal offence that is a totally different matter and is not what we are dealing with in this debate. Fourthly, in talking about legal privilege it is perfectly clear that this is not a privilege for the lawyer, that it brings no advantage to the lawyer, that it has nothing to do with a lawyer's privilege. It is the privilege of the citizen who goes to consult a lawyer. It is his privilege, it is not the lawyer's privilege. I hope that that is the basis on which we are discussing this matter. The Minister has said that the protection— although there can be no exemptions—will be the judge at trial. He will decide if the evidence has been obtained illegally or unfairly, and that is the ultimate protection. Lastly, the Minister says it is difficult to visualise it ever being necessary to allow authorisation of intrusion into a lawyer's chambers.
Let me spell out some of the circumstances in which intrusion is likely to be of substantial value in the detection of serious crime from the point of view of the police. In a conference with a barrister or solicitor the suspect, the member of the public, is very likely to mention his associates, very likely to mention his colleagues. From the police point of view, they would be his co-conspirators. He is very likely to mention where he banks his money. From the police point of view, that would be the proceeds of crime. He is likely to mention where his holiday home is. From the police point of view, that is where he will disappear to and get out of the jurisdiction. He is likely to mention whether he suspects that the police suspect him for some reason or another. That is enormously important from the police point of view. And, of course, he might mention what his defence would be if the police were to suggest that he had done anything unlawful.
If a chief constable is faced with one of his members of the force saying, "So and so is seeing his lawyer in the Temple on Tuesday. I think we will find that essential matters will be discussed during that conference"—and all those matters that I have mentioned would be essential matters—how could any chief constable say that that did not fall within the terms of the clause as being of substantial value in the detection of serious crime?
In those circumstances I would say a word about the constitutional position. When the noble Lord, Lord Hacking, says that the legal profession should be singled out, I can entirely part company with him because the legal position of privilege is entirely different from the privilege covering so many other positions between the citizen and, say, the priest or whoever else. It is a constitutional position. Without a written constitution, all that stands between the all powerful state on the one hand and the liberty of the individual on the other is an independent judiciary and an independent Bar, or, as it
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now will be, an independent group of advocates, ready to uphold the common law without fear or favour. The advocate is part of this constitutional complex. What many laymen do not appreciate is that a lawyer has an overriding duty to the court which is over and above his duty to his client. By that we mean that he has an overriding duty to the proper administration of justice.
It is not sycophancy which causes the advocate to call the judge "my Lord". It is not fear that causes the advocate to treat the judge with good manners and with respect, whatever the shortcomings of the judge's personal behaviour may be. The reason for this is that the judge represents the law and justice in the court. Legal privilege is the citizen's guarantee that he can, when he goes to see his lawyer, speak the whole truth to his adviser in perfect confidence and so receive advice which is honest and untrammelled in return. To allow state intrusion into this process, exercised in secrecy at the behest of one organ of the state—the police—for the benefit of the state, is to undermine a cornerstone of our democratic constitution.
The commissioner's position is nothing to the point because, as has arisen in the previous debate, if the whole process is secret and unknown, there cannot be a complaint to the commissioner and therefore the commissioner has no position. If it is not secret, and it is discovered and a complaint is made, then it is difficult to see, if the chief constable acts in good faith within Clause 91—if he honestly thinks that the intrusion is likely to be of substantial value—how the commissioner can possibly say that the chief constable's conduct has been in any way unlawful or improper.
Lord Browne-Wilkinson: My Lords, we may be at cross-purposes. If the government amendments requiring all authorisations to be submitted to the commissioner for consideration and review are passed, the point about secrecy is gone. The commissioner will be looking at each authorisation whether or not the person bugged complains or knows about it. The government amendment is a major shift which requires investigation of each authorisation.
Lord Hutchinson of Lullington: My Lords, I am most grateful to the noble and learned Lord because I had not myself gone into the exact effect of this afternoon's vote on this clause. However, my second point remains valid as to the approach the commissioner can take if the police officer has acted within the words of the statute.
Surely the overwhelming issue concerns the passing of a law that says that it is not illegal to bug a lawyer's chambers. That to me, as a lawyer, is so extraordinary, remarkable and unbelievable that I could not believe it when I saw it on the face of the Bill. To me the important matter here is that if there is such a law on the statute book it not only deprives the citizen of his privilege but it goes to the very basis of our constitution.
Lord Renton: My Lords, I did not hear the beginning of the debate and I had not intended to intervene. However, having heard what the noble Lord, Lord Hutchinson, has said, I feel obliged just to remind him

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that Amendment No. 27 refers to Section 10 of the Police and Criminal Evidence Act 1984. That is a statutory definition that we now have to accept of what was previously covered by the common law, but not so precisely.
The noble Lord's argument was based on what we all grew up to understand was the common law. However, Section 10 of the 1984 Act refers to,
'"items subject to legal privilege'"
as meaning,
"communications between a professional legal adviser and his client".
It then elaborates on those communications. It says:
"items enclosed with or referred to in such communications and made

(i) in connection with the giving of legal advice; or

(ii) in connection with or in contemplation of legal proceedings and for the purposes of such proceedings".

Subsection (2) of Section 10 goes on to say:
"Items held with the intention of furthering a criminal purpose are not items subject to legal privilege".
One ought to bear that in mind in view of what the noble Lord was saying.
Baroness Blatch: My Lords, we accept that the Government should not be allowed to set out to listen in on, or otherwise interfere with, confidential conversations between a lawyer and his client on matters such as a client's defence with the intention of frustrating that defence. That would be wrong and, under the provisions of the Bill, would be unlawful. We could not introduce provisions exempting particular kinds of information or information held by certain categories of people without creating loopholes in the provisions which criminals would be sure to exploit.
We are dealing with highly professional criminals, and very successful ones, often with considerable resources at their disposal, who would be bound to exploit any exemptions or attempt to use them as a means of having evidence obtained from such surveillance ruled as inadmissible in court. I am sure that in practice the circumstances where the police or Customs would consider it necessary to intrude on the offices of lawyers would be extremely rare. The purpose of intrusive surveillance in these cases would not be to breach the confidentiality of a lawyer and his client but to collect intelligence on the commission or future commission of a serious crime where this information could not be obtained by other means. Authorisation for any other purpose or in any other circumstances would be unlawful.
In some circumstances, it would be impossible for the authorising officer to know beforehand whether or not there were likely to be matters normally subject to legal privilege on the premises. Before authorising interference with a lawyer's offices the authorising officer would need to think it necessary for the action to be taken because he suspected that serious criminal activity or conspiracy in serious criminal activity was taking place on the premises. There is already a specific
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exemption under Section 10 of the Police and Criminal Evidence Act for items held for furthering a criminal purpose.
Other material which properly fitted within the definition of legal privilege may not be given in evidence without the consent of the person enjoying the privilege save where this would help establish the innocence of the person accused. Therefore this amendment would not achieve anything which is not already covered in statute. In similar fashion, the purpose of the intrusive surveillance would not be to breach the confidentiality of the journalist and his source or the doctor and his patient but to collect intelligence on the commission or future commission of a serious crime. Again, authorisation for any other purpose would be unlawful.
An example of where intrusive surveillance might take place is if the police believed that a journalist was actively involved with an organised crime group or where a doctor was allowing his medical premises to be used for the production of synthetic drugs or drug trafficking. The amendments we have put forward will require authorising officers to notify the commissioners of all authorisations—and I was grateful for the intervention of the noble and learned Lord on this point—as soon as is reasonable practicable.
However, the commissioners will also be given a duty to scrutinise specified categories of authorisations within 48 hours of receipt. These categories, which will be set out in a separate order, will include matters usually subject to legal privilege: journalistic material and other medical records except in particular cases where it would be essential for the surveillance to take place immediately to catch a window of opportunity. This would effectively put the commissioner in a position to scrutinise the authorisation before the operation commenced and to quash it if he considered it improper.
One difficulty we have is that a number of authorisations are now being made where one would have to go to a circuit judge for an authorisation. There would also be need to go to a commissioner for an authorisation. However, the main arguments I am using in regard to the amendment hold true. Our proposals ensure that we do not create loopholes which would defeat the whole purpose of the legislation while at the same time ensuring close traditional oversight through the work of the commissioner. We believe this provides a sensible working approach which does not impede serious investigations but ensures the protection of lawyers and their clients and other confidential material from any unwarranted breach of confidentiality.
We are talking in this amendment not just about lawyers' premises. We are talking about wherever a lawyer may be: in a client's home, a club or another place. I do not know what mechanism can be used for knowing that an activity of intrusive surveillance would be unlawful in that circumstance or that legal privilege would apply in advance of actually knowing that it would be claimed that legal privilege applied because those involved happened to be in premises—a private house, a garage, outbuildings or wherever lawyers

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would meet someone to discuss information they regarded as confidential. We are not just talking about legal privilege here, as the noble Lord, Lord McIntosh, reminded us. We are talking about doctors and others who would need to discuss confidential matters. I hope the amendment will not be pressed.
Lord Browne-Wilkinson: My Lords, before the Minister sits down may I ask for a little elucidation? One of the difficulties is that one is talking about chasing villains. To chase a villain you put a bug in the office of the villain's solicitor. You put a bug in the office of the villain's doctor. You put it in the confessional for a member of the mafiosi. The bug, when there, not only collects information about the villain and his dealings; it collects information about every client, every other patient or every other person going into the confessional. What worries me and others is that this information is inevitably communicated. An amendment was put in at Committee stage to try and ensure that the material was destroyed or not used. I am afraid we were told that this was valuable material for criminal intelligence. I find it deeply worrying that the Government will not contemplate safeguarding information which they are accumulating about people who are not concerned in serious crime, will not destroy it and will not protect the privilege of the office in the case of the lawyer or the privilege of the doctor's consulting room. I am deeply concerned that the Government will not reconsider the position of wholly innocent third parties caught up in a bug. I do hope that at some time this matter will be addressed.
Baroness Blatch: My Lords, this is the Report stage and I must ask the leave of the House to address the point which the noble and learned Lord has made. It is important to come back to it because I believe he misunderstands the situation. The amendments ask for blanket legal privilege. I know that if there is a specific belief that lawyers are involved in criminal activity there is an exemption there, so far as the noble and learned Lord is concerned. But for purposes where a lawyer or a doctor is discussing confidential matters with a client, then legal privilege applies.
I have mentioned already today and I am happy to do so again for the record, that information gathered in the course of a bugging operation which was unrelated to the matter for which authorisation was given will be destroyed. That will be addressed in the code of practice. We will continue to press the point that unrelated information will be destroyed.
The noble and learned Lord rightly reminded us that we had a discussion concerning the destruction of evidence. One difficulty is that one needs to make a distinction between evidence which is unrelated for the purposes of the authorisation and evidence which is only intelligence gathering at this stage in pursuit of serious crime but which may have a relevance, not in the short or medium term, but may in fact need to be kept for a long time. So it is rather complex as regards the point at which it should be destroyed. I am happy to say to the noble and learned Lord that we are giving some thought to how we can address the destruction of
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evidence, and certainly the destruction of irrelevant evidence that can be deemed irrelevant at the time. We believe that there should be immediate destruction of that information. I take the point made by the noble and learned Lord and we will continue to seek ways and means of addressing it.
Lord McIntosh of Haringey: My Lords, those last remarks of the Minister are the only ray of hope in an extremely worrying answer. The noble Baroness started by saying that the Government recognise the principle of legal privilege, but then qualified that by saying, "On matters such as the nature of the defence". I have not heard that legal professional privilege is qualified in that way. The definition of "legal professional privilege" and of "excluded material" does not come from this amendment, but from the Police and Criminal Evidence Act 1984. The definition of "subject to legal privilege" comes in Section 10 and the definition of "excluded material" is found in Section 11. We have not sought in any way to extend or to depart from those definitions. They are already part of our law. There is no reason for the Government to suggest that this is a new departure.
I am afraid that matters only got worse as the Minister's arguments proceeded. The noble Baroness sought to complain that Amendment No. 27 covered not only lawyers' premises but also—she was quite right—
"another place in or at which communication subject to legal privilege is taking place".
One can well imagine the way in which a zealous police officer might want to focus a directional mike on the steps of the Old Bailey, for example. That is technically possible and it is perfectly legal according to the provisions of the Bill. Since my Amendment No. 24 restricts the provisions to "premises", it is probably legal even after the passing of that amendment. Surely bugging surveillance should not set out to record communications which are subject to legal privilege or which are excluded communications under Section 11 of the 1984 Act.
Baroness Blatch: My Lords, I speak with the leave of the House and I am grateful to the noble Lord for giving way. Perhaps I may ask the noble Lord a question. If it was felt necessary for the purpose of pursuing the crime that the suspected villain's home was bugged, if the case was properly made out and all the provisions in the Bill were properly met and all the authorisations given, would that be subject to legal privilege if the client met the lawyer on his own home ground?
Lord McIntosh of Haringey: My Lords, of course it could be. I should not have given way to the Minister because I had not finished my argument. The amendments do not propose a total ban on such bugging communications; they propose that the authorising officer and, if necessary, the commissioner or the circuit

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judge (according to which amendment one takes) has to be satisfied that the communication is such that
"it is likely that an abuse of legal privilege will be occurring".
That is a cautious phrase. We are not allowing this to be a matter for discussion between the authorising officer and the person giving the approval. We are not saying that it is an open and shut case and that under no circumstances will the communications not be subject to surveillance. We are saying that where it is anticipated that the information which is being obtained could be subject to legal professional privilege or could be excluded material, a case has to be made out—and the case that has to be made out is that legal privilege or confidentiality is being breached. That is a very modest position. It is not a difficult position to argue. Indeed, if it were not almost 9.15 p.m. I would certainly seek the opinion of the House, but that is pointless. The noble and learned Lord, Lord Browne-Wilkinson, has already referred to this being a sparse House—and it is. This is a matter of such fundamental importance that it deserves to be heard and debated by a full House at Third Reading, and on that basis, and on that basis alone—
Lord Hacking: My Lords, before the noble Lord sits down, he corrected me earlier when I spoke to the amendment and I must now tell him that I have been wholly persuaded by his arguments and those of the noble and learned Lord, Lord Browne-Wilkinson. In the circumstances, I hope that my noble friend will give the matter further consideration.
Lord McIntosh of Haringey: My Lords, I am grateful for that generous observation. I knew that if the noble Lord were to look at Amendment No. 28 he would see that we were covering the other kinds of confidential communication. The noble Lord strengthens the case for saying that the Government will have to listen again. The case is so comparable with that on which the House has already expressed its view today that I warn the Government that unless they modify their position on the matter, they will be defeated again next Tuesday. I beg leave to withdraw Amendment No. 27.
Amendment, by leave, withdrawn.
[Amendment No. 28 not moved.]
Lord Rodgers of Quarry Bank Lord Rodgers of Quarry Bank moved Amendment No. 29:
Page 34, line 1, leave out ("officer") and insert ("circuit judge").
The noble Lord said: My Lords, this is a consequential amendment. I beg to move.
On Question, amendment agreed to.
9.15 p.m.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 30:
Page 34, line 2, leave out ("thinks") and insert ("reasonably believes").
The noble Lord said: My Lords, I beg to move Amendment No. 30. At the same time, I should like to speak also to Amendments Nos. 31 to 33. Although these amendments were debated in Committee, I come
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back to them without apology because the answers provided by Ministers on that occasion were totally unsatisfactory. These amendments, which replace "thinks" with "reasonably believes", "likely to be of substantial value in" with "necessary for", and "is satisfied" with "reasonably believes", and adds the phrase (which is in the code of conduct) "and that the action specified is proportionate to the aim sought to be achieved", have one purpose only. They seek to secure that the action of a policeman who seeks authorisation for intrusive surveillance shall not be justified simply on the basis of what he thinks but on an objective test.
It may or may not make a difference to the way in which the police officer makes out his application for authorisation to bug, but it makes an enormous difference to the way in which the commissioner subsequently considers whether or not it was justified. If the commissioner is entitled to say only that he thought it was likely to be of substantial value, rather than that he reasonably believed that it would be valuable or necessary, the commissioner has very little to go on in deciding whether or not it was a proper application. Unless there is an objective test there is nothing that the commissioner can do to decide whether or not the process of reasoning was in accordance with the law and with what most of us would recognise as being the occasions on which this unattractive and undesirable but inevitable process of bugging should be justified.
In responding to the amendments at an earlier stage, the noble and learned Lord the Lord Advocate, advanced a number of arguments about the meaning of different words. One definition of "think" in the dictionary is "believe", and obviously the converse is true. But he did not really address the issue of the necessity for an objective test not only at the time when the application is being prepared but, more importantly, when the commissioner is deciding whether or not the application was justified. I beg to move Amendment No. 30.
Lord Lester of Herne Hill: My Lords, with great brevity I should like to speak in support of the amendment. It seems to me that the Home Secretary ought logically to be in favour of the amendment. In his interesting essay in today's Times he writes:
"Surveillance may be authorised only if it is necessary to prevent serious crime, and may be used only against those engaged in such crime".
That is a tougher test than is proposed in this amendment. If one takes the position of the Home Secretary literally, the powers are confined to a case of actual objective necessity. In my view, rightly the noble Lord, Lord McIntosh, does not go so far. He seeks to substitute for the purely rubbery and elastic subjective test "thinks it necessary" and "is satisfied" the language of objective satisfaction which is necessary if judicial review, or any ex post facto judicial accountability, is to take place. The problem is that, left as it is, one is left with rather loose principles of English administrative law and it will be difficult to have any effective review of words like "thinks it necessary". I believe that, in accordance with the rule of law, this prevents a

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completely subjective situation from arising. I think it right that the Bill should be strengthened in this way. It will also provide some help by way of standards for whatever form of judicial authorisation is to be introduced into the Bill before it leaves Parliament. I support the amendment.
Baroness Blatch: My Lords, to make a purely personal comment, I believe the police can be forgiven for believing that there is a sort of self-indulgence in the suggestion arising from this debate that they cannot be trusted to put a good case for an application for intrusive surveillance. Such an application has to be considered against very rigorous criteria. They have to believe it necessary for the action specified to be taken on the ground that it is likely to be of substantial value; and they have to be satisfied that what the action seeks to achieve cannot reasonably be achieved by other means. Chief constables have to be satisfied by that, and, under the terms of the amendments passed in this House, so do circuit judges and commissioners. I find the suspicion about how a policeman just might interpret the provision rather offensive. Having said that, the terms—
Lord Lester of Herne Hill: My Lords, I am grateful to the Minister for giving way. The last thing I seek in supporting this amendment is to impute bad motives or intentions, or even bad practice, to anybody. I should take precisely the same view if language of this kind appeared in relation to a Secretary of State of a government of whatever colour. The objection is not to the possibility of malpractice; it is simply that a public officer of the state exercising draconian powers ought to satisfy a test of objective satisfaction and not merely subjective satisfaction. That is not an unreasonable requirement. The principles of judicial review are quite generous in what they allow to the decision taker. There is no question here of suggesting that police habitually abuse their powers. It is simply a matter of proper control by the rule of law.
Baroness Blatch: My Lords, I repeat that it was a personal observation on what was said during the course of the debate earlier and during debate on this amendment. I do not withdraw my remark. The criteria and rigour of the code of practice that will have to be satisfied by anybody applying for such an activity are such that I do not take issue with the fact that a police officer applying for permission to use surveillance thinks the action necessary and that it is "likely to be of substantial value". Frankly, it is a test that I would entrust to the police.
The terms in the Bill are those that are used in the Interception of Communications Act and the Intelligence Services Act. We see no reason to change them. Furthermore, as I said, I am not persuaded that the phrase,
"likely to be of substantial value",
should be replaced with "necessary for". There is already a "necessary for" test in the first part of the sub-paragraph. Any further repetition would be tautologous.
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We must also remember that these are primarily intelligence gathering operations against our most elusive and difficult serious criminals who must be rejoicing today in what has happened in this House. On occasions it can be very difficult for an authorising officer to be sure that the action he authorises will ultimately lead to the prevention or detection of serious crime. We can, however, be satisfied that the action "is likely to be of substantial value" in the investigation process.
With regard to Amendment No. 33, we have made clear in the Bill that authorisation should be given only in cases involving serious crime and where what the action seeks to achieve cannot reasonably be achieved by other means. A code of practice, a draft of which noble Lords have seen, introduces a further element of proportionality. Authorising officers must satisfy themselves that the degree of intrusion into the privacy of those affected by surveillance is commensurate with the seriousness of the offence. I believe that the code and the need for consistency with other legislation concerning similar applications are sufficient to satisfy the concerns of your Lordships. I therefore hope that the amendment will not be pressed.
Lord Thomas of Gresford: My Lords, before the Minister sits down, she said a moment ago that serious criminals must be rejoicing in what has happened today. She talks about proportionality. Can she please be proportionate in a comment such as that, which is far beyond what I should expect to hear in this House? To say that serious criminals will rejoice because a judge or a commissioner has to authorise the bugging of private homes sounds completely out of proportion.
Lord McIntosh of Haringey: My Lords, I agree with the noble Lord, Lord Thomas. I believe that the Minister, in her personal comments as well as in what she said afterwards, was way over the top in her response to the amendments. I am afraid that the answer was as unsatisfactory as that given by the noble and learned Lord the Lord Advocate in Committee. At no stage in the phrases with which she criticised the semantics of the amendment was there any recognition of its most important element. The most important element is to provide an objective test which can be evaluated by a commissioner when the matter comes up for subsequent review.
The Minister, quite unnecessarily, said that the amendment was casting aspersions on the motivations or the intentions of police officers and that they would find it offensive. How can that be so? In respect of almost everything that any of us do in this life we are subject to criticism from our colleagues, opponents, bosses, subordinates, or whoever. One of the issues about which people are entitled to be concerned when they look at what we do in the world, in public life, in business or wherever is whether our intentions were honourable. That affects the way in which they make a judgment about the issue. In this case, the Bill is so drafted that the commissioner who is undertaking the review cannot look at whether the intentions of the policeman making the application were right. He cannot

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look at whether the policeman considered adequately what the alternatives were. He can look only at whether the policeman thinks that it is appropriate—
Baroness Blatch: My Lords, with the leave of the House, what does the noble Lord mean by "cannot look at"? In the course of considering whether authorisation should be given, the police officer requesting an application can be quizzed in all kinds of ways; for instance, "What makes you think you have good reason for this activity?". He will be quizzed on all of those things; on what it is that makes them think that it would add substantial value to their information.
Lord McIntosh of Haringey: My Lords, the Minister has exactly made my point. I shall try to quote her precisely. She said, "What is it that made you think you had good reason to act in this way?". The commissioner can say that only if the test is whether he reasonably believes, not whether he thinks. "What made you think that you had good reason?", is exactly what the amendment says and what the Bill does not say— exactly! I shall put this matter to the House for decision.
9.28 p.m.
On Question, Whether the said amendment (No. 30) shall be agreed to?
Their Lordships divided: Contents, 33; Not-Contents, 82.

Division No. 4

CONTENTS

Graham of Edmonton, L. [Teller.]

Monkswell, L.

Rodgers of Quarry Bank, L.

Hilton of Eggardon, B.

Thomas of Gresford, L. [Teller.]

McIntosh of Haringey, L.

Williams of Mostyn, L.

NOT-CONTENTS

Blatch, R.

Ferrers, E.

Mackay of Ardbrecknish, L.

Brougham and Vaux, L.

Mackay of Drumadoon, L.

Courtown, E. [Teller.]

Strathclyde, L. [Teller.]

Resolved in the negative, and amendment disagreed to accordingly.
9.35 p.m.
[Amendments Nos. 31 to 33 not moved.]
Lord Lester of Herne Hill Lord Lester of Herne Hill moved Amendment
No. 34: Page 34, line 11, leave out subsection (4) and insert—
("(4) Applications for decisions under subsection (2) may be made to a circuit judge by—

(a) a police officer of a rank not lower than that of Assistant Chief Constable of a police force maintained under section 2 of the Police Act 1996 (maintenance of police forces for areas in England and Wales except London);

(b) a police officer of a rank not lower than that of commander in the metropolitan police force;

(c) a police officer of a rank not lower than that of commander in the City of London police force;

(d) a police officer of a rank not lower than that of Assistant Chief Constable of a police force maintained under or by virtue of section 1 of the Police (Scotland) Act 1967 (maintenance of police forces for areas in Scotland);

(e) a police officer of a rank not lower than that of Deputy Chief Constable of the Royal Ulster constabulary;

(f) NCIS officers designated by the Director General of NCIS for this purpose;

(g) NCS officers designated by the Director General of NCS for this purpose;

(h) customs officers designated by the Commissioners of Customs and Excise for this purpose.").

The noble Lord said: My Lords, this is a consequential amendment. I beg to move.
On Question, amendment agreed to.
[Amendment No. 35 not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 36:
Page 34, line 23, at end insert ("criminal").
The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendment No. 37. Having been concerned with other definitions in Clause 91, we are now concerned with one of the most critical issues; namely, the question of what constitutes serious crime.
We tabled a different amendment in Committee which we do not propose to pursue this evening. However, noble Lords who have read newspaper reports, watched television programmes and listened to the radio in the weeks since the Committee stage will be aware that one of the most pressing concerns that has arisen relates to one particular aspect of the definition of "serious crime" which is used in the Bill. I refer to the provision in Clause 91 that it is a serious crime if, among other things, it is,
"conduct by a large number of persons in pursuit of a common purpose".
The other qualifications for "serious crime" are that it must involve the use of violence or result in "substantial financial gain". Of course, there is also the qualification, which is an alternative and not an addition, that the offence, or one of the offences, is an offence for which a person who has attained the age of 21 with no previous convictions,
"could reasonably be expected to be sentenced to imprisonment for a term of three years or more".
I believe that everyone will agree that the "use of violence" or the search for "substantial financial gain"— presumably, illegal financial gain; indeed, I do not believe that anyone has been heard to refer to the emoluments of directors of Morgan Grenfell asset management in this context—constitute serious crimes by any standards.
However, what can the words,
"conduct by a large number of persons in pursuit of a common purpose",
mean, other than that if it is to be serious crime then it must be criminal conduct and it must be in pursuit of an illegal purpose? Otherwise, anything that any one of us might do like, for example, joining a political party, going on a sponsored walk or—God forbid!—running in a marathon would be conduct by a large number of persons in pursuit of a common purpose. It cannot mean a legal common purpose; it cannot mean legal conduct. If the phrase "criminal conduct" is to make any sense at all, then it must mean an illegal purpose.
The distinction most commonly made is that relating to protesters about the Newbury bypass. I believe that it will be readily acknowledged that some forms of protest at some times in recent years have been for an illegal purpose. They could, for example, be deliberately planning a riot or a serious breach of the peace. However, most conduct of this kind, and in particular the conduct of most of the people who felt very strongly about the building of the Newbury bypass, is not illegal, is not criminal conduct, and is not in pursuit of a common purpose. Yet it is covered by the definition of serious crime used in this Bill and therefore becomes a justification for police intrusive surveillance.
Public comment on these issues has been fairly widespread. One of the things which I believe has concerned people more than almost anything else is the thought that, by inadequate definition, innocent people will be brought within the scope of intrusive surveillance. I know that I shall be told that the definition has been used in legislation before. I undertake, if this amendment is agreed to, to redraft the previous legislation and insert it, if necessary, as an amendment to this Bill at Third Reading. The fact that the definition has been used before has not been adequately drawn to the notice of the public. I believe that, if they knew about it, they would not accept that it was adequate as a definition of serious crime. I beg to move the amendment.
Lord Lester of Herne Hill: My Lords, my attitude towards this amendment depends very much upon the Minister's answers to the short speech of the noble Lord, Lord McIntosh. I am not a criminal lawyer and I am probably about to make an idiot of myself by what I say. However, I do not understand why the definition of serious crime goes wider than the definition of a criminal conspiracy or an attempted criminal conspiracy. I do not understand what conduct it is designed to catch which is not covered by common law conspiracy or attempted conspiracy.
Similarly, I do not understand the previous phrase, "results in substantial financial gain", as the qualification on what is meant by "serious crime". I should be grateful if the Minister could clarify, either now or in correspondence, whether I am right in thinking that those words are wide enough to cover, for example, the case of a newspaper suspected of committing serious crimes under the Official Secrets Act or the Contempt of Court Act with a whistle-blower or public interest defence but which is liable to make substantial financial gains as a result. Are those the kinds of matters which the Government have in mind in their definition of serious crime? If so, the position is even more serious than I had anticipated.
I should be very grateful for answers to those questions, either now or hereafter, as they very much affect my decision as to whether or not to support the amendment.
Lord Renton: My Lords, it seems to me that the amendments are unnecessary because the Bill is perfectly clear as it stands. Also, to add the words "criminal" at the end of line 23 and "illegal" at the end of line 24 introduces words of limitation which would narrow the effect of the clause.
9.45 p.m.
Lord Thomas of Gresford: My Lords, words of limitation are precisely what is required. That is the whole purpose of this amendment. Opposition to various clauses in this Bill has been described by the Minister as an attack upon the police or imputing motives to chief constables which are improper. The whole problem with this Bill is not so much what the chief constable or the police are likely to do; it is what they will do on instruction as an arm of the state, an arm of government. When one sees words as wide as,

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"conduct by a large number of persons in pursuit of a common purpose"
one immediately thinks of demonstrations of one sort or another which are perfectly lawful. What this Bill should make clear is that the police will not be used as an arm of the state or of the executive for bugging discussions which may take place about the putting together of demonstrations of which a government would disapprove. Perhaps it is not just a matter of looking in the short term; it is a matter of looking in the long term at the effect of this sort of broad and ill-defined wording that is contained in this subsection. It is right that words of limitation should be included as this amendment suggests.
Lord Browne-Wilkinson: My Lords, I am afraid I am rather at a loss to know what the amendments achieve. As I think I made clear earlier, I have the strongest objection to this whole concept of,
"conduct by a large number of persons in pursuit of a common purpose"
whatever that may be, whether it be criminal conduct for a common illegal purpose. That can be 100 miles away from serious crime. The actions taken against the Newbury bypass may constitute criminal conduct of a minor kind, so may other small political gatherings involving a breach of the peace or obstructing the police. Yet, that is serious crime. Having said that, I cannot see that this amendment touches that point at all, if it is not clear even to a Law Lord that the conduct has to be a crime which satisfies these requirements, and unless it is a crime it does not come within the provision. My difficulty is that it covers a multitude of tiny matters which are not serious crime, but that is not touched by this amendment.
Baroness Blatch: My Lords, I shall read subsection (5) in this clause which simply states:
"For the purposes of subsection (3), conduct which constitutes one or more offences shall be regarded as serious crime if, and only if.
The subsection then qualifies that statement. The definition of serious crime applied in the Bill has already been the subject of much discussion and will no doubt continue to be so.
I know there is concern among your Lordships about certain aspects of the definition. Certainly the noble and learned Lord has once again reminded us of his original concern on this point. We made our position clear at Committee stage. The definition of serious crime in Clause 91 was carefully chosen. It is the one used in the legislation relating to the issue of warrants under the Interception of Communications Act 1985. It has been in place for more than a decade and has worked well. Warrants issued under the Interception of Communications Act are subject to scrutiny by an independent commissioner. None of the three distinguished members of the judiciary who have held the office of Interception Commissioner—the noble and learned Lords, Lord Lloyd, Lord Nolan, and Lord Bingham—has ever found cause to complain about the definition.
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I appreciate that concern has been expressed with regard to the position of anti-road protesters. Indeed these amendments could have been tabled with that particular point in mind. However, these techniques could not be deployed except against individuals whose conduct is criminal. Surveillance is an expensive and technical activity which is resource intensive. Its use will be authorised only in the most serious cases. It has been in use for many years and there is no evidence whatsoever that the police have used it inappropriately.
It would be odd if the police or customs were to find themselves subject to different definitions to the Security Service in applying for authorisation to interfere with property in cases relating to serious crime. There are obvious benefits of consistency and, combined with the knowledge that the definition has worked for many years in existing statute, I hope that your Lordships will agree that any amendment is unnecessary.
I recognise what the noble Lord, Lord McIntosh, said about wishing to return to primary legislation as regards other statutes to bring the wording of those statutes into line with the proposals contained within these amendments. However, this was not neglected as a subject in the course of discussing the Security Service Act. Therefore I do not see that we should have to bring those measures into line with these amendments unless there was a problem. As I have said, there is no problem.
In reply to the noble Lord, Lord Lester, I shall have to write to him when I have read more carefully the particular question he posed. I shall comment on one part of what he said, and that was where he referred to a breach of contempt of court, which I understand is not a criminal act.
Lord Lester of Herne Hill: My Lords, perhaps I can explain what really troubles me and then clarify my question. There are some crimes which are of a political flavour. There are offences against public order, there are offences concerning the administration of justice, Official Secrets Act crimes, Contempt of Court Act crimes and public order offences, and they are all of that character.
Would the noble Baroness the Minister first agree that one might want to adopt a different approach with ordinary policing and surveillance in such matters, as distinct from the kind of criteria for the Security Services in dealing with real national security issues? Secondly, I am seeking to discover whether this concerns the fears of the noble and learned Lord, Lord Browne-Wilkinson, that this can be a catch-all provision to cover a wide range of serious crimes in a theoretical sense, which can cover a whole range of matters of a political nature, like demonstrators and so on indulging in criminal trespass, let us say, and matters of that kind. The House is attempting to discover whether there are any limits on this very rubbery language. It may have been used before in a national security context or a telephone tapping context. Here the powers are draconian and a part of ordinary policing. That is the concern I am trying to convey.
Baroness Blatch: My Lords, a number of points occurred to me while the noble Lord was speaking.

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First, some of those decisions are operational matters for the police to determine. Secondly, the authorisations will, of course, be controlled. They have to apply for authorisation, and the authorisation given has to be taken in the context of them complying with all the provisions that will be set out in the Act. The most practical down pressure on the police will, of course, be resources. I have heard nothing from the noble Lords opposite about pouring more resources into these activities. Certainly, as well funded as we believe the police are, we think that they would give some priority to the more serious crime because that is what they are pursuing. I simply do not see the idea that they should spend their time bugging and carrying out surveillance on road protesters involved in petty crime as a threat.
The best possible judgment that we can make at this stage is to look at the record of how the police have operated with precisely these words in other statutes. We can come to only one conclusion, that they have acted with great responsibility and restraint, and it is our view that they will continue to do that under the provisions of this Bill.
The accountability mechanisms in the Bill have been strengthened to require that all authorisations will be forwarded to the commissioner for scrutiny as soon as possible. The commissioner, I believe, would quickly quash any authorisations which he considered inappropriate. For purposes, again, of consistency with existing statute, and praying in aid the fine record of the police in exercising their activities consistent with the wording, I believe that the amendment should not be pressed.
Lord Browne-Wilkinson: My Lords, as I understand the burden of the answer given, it is not that the section does not authorise such gatherings or groups of people to be treated as being guilty of serious crime, but that our present police force, our present Home Office, our present political set up will not so treat it because resources are short. I am sorry, but I will leave the noble Minister alone shortly. I know I am being tiresome. Again I come back to the question that we are legislating not for this Home Secretary, not for these police— nobody is being rude about anybody—but what is being done is putting on the statute book a power which can be exercised by less scrupulous people.
As I see it, to treat as a serious crime a meeting of a number of people with whom they disagree who may be obstructing the highway or whatever they like, is constitutional change. What I hoped the Minister would say was that in her reading of it and in her advice, it would not cover such a case, but one never has that assurance. That is the crucial matter. I am sorry, but I promise that I shall stay quiet.
Baroness Blatch: My Lords, with the leave of the House, the noble and learned Lord has the habit of having the last word and asking me not to respond to it. I feel that I must. Such is the system that under any alternative—whether it is the amendments passed earlier or the proposals originally set out in the Bill—no one person can act in a machiavellian way. No one person can exercise their duties cavalierly. There are many checks and balances in the system.
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An applicant for authorisation has to go to a chief constable. A chief constable must go to a commissioner. The commissioner has powers to quash. Under the other arrangements resulting from the amendments, other steps are in place. It will continue to be an operational matter. The police are bound by endless codes of practice, criminal evidence Acts, and the rigours of the systems set out in the Bill. They will always be subject to those requirements. The idea that we have responsible chief constables now but that we may not have them next year or some time in the future, with the transparent system we now have, is unthinkable.
Under any alternative within the Bill, the authorisations will continue to be controlled. Unless a great deal more money falls from Heaven, the financial constraints on the Bill will mean that they will continue to pursue serious crime and not play around with trivia.
Lord Williams of Mostyn: My Lords, perhaps I may ask the Minister one question. She said that the commissioner would quash an application where it is inappropriate. I wonder whether she could assist me by specifying upon what basis the commissioner might so quash because if one looks at the scheme Clause 91(3) provides:
"… where 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".
One then goes on to subsection (5):
" … conduct which constitutes one or more offences shall be regarded as serious crime …".
That is not "may". Where does the discretion to quash where inappropriate come from? After all, does the Minister agree that if one had demonstrations of the type that one sees in the streets of Belgrade at the moment that would constitute a serious crime on these definitions?
Baroness Blatch: My Lords, it must be for the judgment of the commissioner or circuit judge. It would be for the commissioner or the circuit judge if they believe that the degree of activity upon which the police wish to intrude is such that the commissioner or circuit judge regards that not to be the best use of surveillance and that the police should be pursuing more serious crime. The commissioner must be bound by the definitions within the Bill. There is flexibility there. There has to be flexibility. When one is seeking intelligence and pursuing serious crime, it is always difficult to be specific at the outset. The case will be put to the commissioner or the circuit judge for them to make a judgment upon it.
Lord Williams of Mostyn: My Lords, I thank the Minister for that elucidation, which I take to mean that if the amendments which were passed by your Lordships earlier this evening, in whatever form, become part of the Act, the pre-authorising judicial officer will have a discretion based upon a proportional response to strike down the application. I take that to be the Government's position.
10 p.m.
Lord McIntosh of Haringey: My Lords, I do not think the Minister had better answer that because she has put herself into very deep water already, or my noble friend has done so. It really is not good enough for her to respond as she has been by talking as if the restriction on police financial resources is the proper constraint to the use of surveillance techniques.
We in this House today are concerned with the legal, statutory basis on which this intrusive surveillance is to be permitted. The Minister has more than once now returned to this claim that of course it will be all right, there will only be bugging in the cases of serious crime because there is not enough money despite, as the Government must say, the adequate funding of the police generally. There is not enough money for them to bug except in cases of genuine serious crime. Then, when my noble friend Lord Williams questions what she is saying, she says: "Well, the commissioner who is reviewing the decision afterwards will look at this case and consider whether within these limited resources this was the most important case for intrusive surveillance, or whether something which might have come up somewhere else could have been considered to be more important, and the consideration for that will be the proper use of resources." When my noble friend questioned her on that point she really was not able to answer it at all. I have never, in 14 years' experience in this House, heard such irrelevant or inadequate answers as we have been hearing on some of these amendments today. It really is deplorable.
I am going to withdraw this amendment, not because of anything the Minister has said but because of the remarks of the noble and learned Lord, Lord Browne-Wilkinson, who pointed out to me, I am afraid correctly, that, greatly objectionable as the wording in the Bill is, my amendment would not actually achieve anything. If the Minister will forgive me, I shall beg leave to withdraw the amendment.
Baroness Blatch: My Lords, I do insist, with the leave of the House, on asking the noble Lord this question: will the noble Lord not agree that Section 91(2) provides that,
"Where subsection (3) applies, an authorising officer may authorise"?
In other words, the authorising officer has discretion as to whether or not to give authorisation—it would be the circuit judge in this case. Would the noble Lord not also agree that the final line of the first paragraph of his Amendment No. 24, provides that the authorisation will not take effect unless it has been approved by a commissioner appointed under Section 95, with, again, the commissioner having discretion as to whether or not to give such authorisation?
Lord McIntosh of Haringey: My Lords, of course I agree that there is discretion available to the commissioner. That is not the point that I was making. What the Minister was saying was that the commissioner is going to be able to exercise his discretion on the basis of which of the various options open to the police would constitute the best use of
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limited financial resources: that was the protection which she offered for the definition of serious crime. We are getting out of order.
Baroness Blatch: My Lords, if I may with the leave of the House, I have to put it on record that that is not in fact what I said. I did say in response to the noble Lord, Lord Thomas, that a downward pressure on the police—not to be trivial, not that it would be a discretion exercised by the commissioner—would be the need to use their resources wisely and effectively, so they would not play around doing unnecessary things; they would actually be pursuing the more serious crime. That was the downward pressure I was concerned about with regard to resources, not that the decisions of the judge or the commissioner would be made on those grounds.
Lord McIntosh of Haringey: My Lords, therefore if they had more resources they would do more bugging, would they? That is the only conclusion one can draw from what the Minister has said. It really is. The Minister confirmed that the commissioner can quash an authorisation if it is inappropriate, and she is now saying that one of the considerations that can be taken into account in deciding whether or not an authorisation is inappropriate is the proper use of resources. Hansard will bear one of us out. I am convinced it will be me. I beg leave to withdraw the amendment.
Amendment, by leave withdrawn.
[Amendment No. 37 not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 38:
Page 34, line 29, at end insert—
("() 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 evidence obtained under the Interception of Communications Act 1985.").
The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendment No. 124. The amendment is concerned with the issue of the destruction of evidence and we refer to Section 64 of the Police and Criminal Evidence Act 1984. I return to this matter, which I raised at Committee, only because, even under the more liberal rules of debate which apply at Committee, the noble and learned Lord the Lord Advocate, in responding to my amendment, failed to address the most significant point about Section 64 of the Police and Criminal Evidence Act.
That most significant point is that he claimed—in my view wrongly—that the amendment would do harm to the structure of the Bill because there is no need for a particular offence to have been committed before an authorisation can be sought. Therefore, we could not apply the Section 64 procedure. I have looked again at Section 64 of the Police and Criminal Evidence Act. My understanding may be defective, although it has not been suggested to me that it is. The point about Section 64 is that it refers to destruction after a case has resulted in acquittal. Under those circumstances, surely it is proper that destruction should apply to the material obtained by intrusive surveillance on the same basis.
This is a very small amendment because Section 64 of the 1984 Act is very limited, but I want the record to be put straight. I beg to move.
Baroness Blatch: My Lords, the amendments deal with a very important issue, which is how the material obtained by intrusive surveillance should be treated.
It is obviously important that material obtained by such intrusive techniques should be treated with all due care and that there are proper safeguards to ensure that there are procedures in place governing the handling and eventual destruction of such material. However, I do not believe that either of these amendments is appropriate. Their combined effect would be to require the product of police and Customs intrusive surveillance operations to be treated in the same fashion as the product of interceptions authorised under the Interception of Communications Act 1985 (IOCA). IOCA imposes strict rules on keeping the number of people who can see such material to a minimum, on the disclosure of such material and on its destruction.
Superficially, such a regime may seem attractive for material obtained as a result of operations authorised under this Bill. However, there is a key difference. Section 9 of IOCA imposes an absolute bar on intercept product being adduced as evidence in criminal proceedings and, indeed, on any questions being asked about interception in such proceedings. It is therefore possible to destroy intercept product once the information has been assimilated into the general information picture or once an investigation has been completed.
By contrast, the product of police and Customs intrusive surveillance operations can, subject to the views of the court, be used as evidence. There have been a number of cases over the years in which the courts have been happy to admit such material as evidence and that will not change once this Act puts these operations on a proper statutory footing. This means that information obtained needs to be retained for much longer. Particularly where information has been obtained by intrusive surveillance as part of a long-term intelligence gathering operation, a prosecution may result long after the original intrusive surveillance operation. It is important that the material is still available at that stage, both so that the prosecution can use it as part of its case and also so that the prosecution can fulfil its disclosure obligations. Similarly, at that stage the material will be used for the purposes of prosecution rather than for the purposes of prevention and detection of serious crime. So the regime proposed in the new clause, which limits the disclosure and copying of the material to the minimum required for the prevention and detection of serious crime is inappropriate.
The absence of statutory rules governing the handling and destruction of this material does not mean that these issues will be treated in cavalier fashion. Given that chief officers will be involved in the authorisation of these intrusive surveillance operations, they will clearly have a personal interest in ensuring the proper handling of the results. I have no doubt that the chief commissioner will consider that the handling of the
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product will be one of the areas that he should look at as part of his general function to keep this whole area under review and he will no doubt report any concerns that he has about this to the Prime Minister.
Finally, it should not be forgotten that there is another good reason to ensure that the intrusive surveillance product is securely handled and seen only by the minimum number of people necessary. The more people who handle such material the greater the risk of the information getting back to the subject of the intrusive surveillance.
Although I am sympathetic to the intentions underlying the amendments, for the reasons that I have given I cannot support them. As I have demonstrated, the product of intrusive surveillance operations will be carefully handled. Therefore I hope that the noble Lord will not press the amendment.
Lord McIntosh of Haringey: My Lords, I understand the need for long term operations. The Minister has not answered the point as regards how limited Amendment No. 38 is. It refers only to information which is available after a case has resulted in acquittal.
I appreciate what the Minister said about Amendment No. 124. There have to be strict rules regarding the restriction of availability of this material, not only to avoid it getting back to the subject of the intrusive surveillance, but, as the noble Baroness said, more generally, in the interests of justice.
The Minister gave a complicated answer and I should like to consider it. In the meantime, I beg leave to withdraw Amendment No. 38.
Amendment, by leave, withdrawn.
Lord Rodgers of Quarry Bank Lord Rodgers of Quarry Bank moved Amendment No. 39:
Page 34, line 30, leave out subsection (6).
The noble Lord said: My Lords, this is a consequential amendment. I beg to move.
On Question, amendment agreed to.
[Amendment No. 40 not moved.]
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 41:
Page 35, line 11, at end insert—
("() Nothing in this Act shall prejudice any power of a court to exclude evidence (whether by common law or otherwise) at its discretion.").
The noble Lord said: My Lords, I move this amendment which stands in the name of my noble friends Lord McIntosh of Haringey and Lady Hilton of Eggardon.
This important amendment seeks clarification that nothing in the Bill in its final form whatever that may be in due time, will have any limiting effect on the common law or, perhaps more likely now, on the

485
statutory powers of a court at its own discretion to exclude evidence in criminal proceedings. The provision is as simple as that. I beg to move.
Baroness Blatch: My Lords, I shall be equally brief and, I hope, helpful. There is nothing in the Bill which excludes or disapplies the powers contained in Section 78 of the Police and Criminal Evidence Act 1984 or equivalent provisions. Therefore we believe that the amendment is unnecessary.
Lord Williams of Mostyn: My Lords, I am obliged to the Minister. As soon as the noble Lord, Lord McIntosh, departs from the Chamber, sweetness and light break out—I have the ability of course to alter that section of Hansard. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 93 [Authorisations: procedure and duration etc.]:
Baroness Blatch: My Lords, in principle we have no problem in agreeing to Amendment No. 42. In my notes it is the amendment of the noble Lord, Lord McIntosh of Haringey. Perhaps I may be given a moment to sort out my notes.
Baroness Hilton of Eggardon: My Lords, perhaps I may assist the House. We have amendments in parallel, to which Amendments Nos. 42 and 43 are alternatives. We are effectively pursuing the same ends except in relation to Amendment No. 49, where we suggest that there should be monthly reviews in addition to the three-monthly renewal period.
10.15 p.m.
Baroness Blatch: My Lords, I have no reference in my notes to this amendment. I do not know whether it is within the rules of the House to move to Amendment No. 50 while I sort out Amendment No. 42.
Baroness Hilton of Eggardon: My Lords, we are agreed about Amendments Nos. 42, 44, 46, 47 and 48. Only Amendment No. 49 is additional.
Baroness Blatch: My Lords, this is unforgivable on my part. We spent so much time on the earlier amendments that I have not concentrated enough on this group. I do not have any reference to these amendments in my notes. I wonder whether the House would give me five minutes to ensure that I get them. I beg to move that the House do adjourn during pleasure for five minutes.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 10.16 to 10.21 p.m.]
Baroness Blatch Baroness Blatch moved Amendment No. 42:
Page 36, line 28, leave out from beginning to ("it") and insert ("72 hours beginning with the time when").
The noble Baroness said: My Lords, I offer my profuse apologies for the delay. I had here a group of amendments but no notes. This group of amendments reduces the authorisation times from 15 days to 72 hours for oral authorisations and from six months to three for other authorisations, which will not inhibit their operational effectiveness. I would have been arguing much more coherently had I been better prepared for this particular group of amendments and arguing that the Government's amendments are preferable. In the hope that the noble Baroness will accept them, I beg to move.
Baroness Hilton of Eggardon: My Lords, yes indeed we do accept the government Amendments Nos. 42, 44, 46, 47 and 48. The only point which I really would wish to argue in addition is that the authorisation should be reviewed on a regular monthly basis and not left for three months. We feel that in an issue as important as this, involving the surveillance of people's homes, at least a monthly review of the situation is appropriate and that it should not be left for even three months. Otherwise, we welcome the reductions in the time limits which the Government are suggesting. In fact our own suggested amendments are on all fours with those propsoed by the Government. I would not therefore intend to pursue our own alternative forms of words, which in some cases are actually defective, I think. We urge the Government to consider whether it would be appropriate for the authorisations to be reviewed on a monthly basis so that three months are not allowed to elapse between the initial authorisation and the next.
Baroness Blatch: My Lords, I am sorry to have to sound unhelpful. We believe that it must be for the commissioner to do what he believes is appropriate. We genuinely believe that there will be a pecking order of priorities for him to be more vigilant about, but it really must be a matter for him. We shall continue to evaluate the working of the Bill when it becomes an Act. The annual reports to Parliament will give us even more indication of how well it is working and of the degree of monitoring and review that will be necessary.
Baroness Hilton of Eggardon: My Lords, I recognise that the authorising officer will, effectively, now be the commissioner rather than a senior police officer, given that the earlier amendments have been passed. The noble and learned Lord the Lord Advocate, is shaking his head at me—
Baroness Blatch: My Lords, I believe that I started the muddle. As I understand it, the authorising officer will be a circuit judge.
Baroness Hilton of Eggardon: My Lords, that is my understanding, in which case I do not think that our amendment is appropriate any longer. That was the point that I was about to make. If the authorising officer had remained a senior police officer, there would have been no difficulty in reviewing the authorisation on a monthly basis because a great many police operations are reviewed on a monthly basis. My point was that a

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consequence of the amendments that we passed earlier is that the authorising officer will now be a circuit judge and monthly authorisations might therefore be considerably more difficult. In those circumstances, I beg leave to withdraw the amendment, but we shall consider the matter in the light of the amended—
Lord Williams of Mostyn: My Lords, before our amendment is withdrawn and in a spirit of helpfulness—
Baroness Trumpington: My Lords, I may be wrong, but I believe that the amendment being moved is Amendment No. 42. The other amendments are grouped with it, so the noble Baroness cannot withdraw any of her amendments yet. I believe that that is correct.
Lord Williams of Mostyn: My Lords, I am most obliged to the noble Baroness. A problem is now developing. Some of it is due to semaphore, which is useful because I believe that the noble and learned Lord the Lord Advocate to be right in his indication that the authorising officer still remains the senior police officer. The amendments which have been successfully moved—whether we are talking about the amendment in the name of my noble friend Lord McIntosh or that in the name of the noble Lord, Lord Rodgers—do not bite on the definition of "authorising officer". Amendment No. 24, which was moved by my noble friend Lord McIntosh still retains a descriptive categorisation of "authorising officer", but his application may not take effect until approval.
I am not pointing any finger at anyone, but one is now getting into a significant degree of muddle because of the nature of the amendments that have been passed. As I understand it—this view may be shared by the Lord Advocate—the authorising officer still remains the senior police officer. The "commissioner" has been inserted whether as a commissioner who has formerly held, or is presently holding, high judicial office or as a circuit judge, according to the amendment moved by the noble Lord, Lord Rodgers. It will be extremely difficult to continue discussing amendments of detail when the terms and terminology are being transposed so constantly. I merely raise that point although the noble Lord, Lord Lester, may well share that concern.
Lord Lester of Herne Hill: My Lords, I am finding it difficult—I am sure that the Minister will find it even more difficult—to consider the amendments properly when a major shift was made earlier by the acceptance by the House of the two main amendments. I respectfully suggest that one would have a better focused debate if the Government had the time to take stock of what other, wider consequential amendments are needed when deciding what to do in respect of those two earlier amendments. I cannot help thinking as we go through the amendments that this is a situation of "more haste, less speed". It might be desirable to find a way procedurally to return to these amendments at a later stage and perhaps to deal now with later clauses in the Bill which are not affected by them. I believe that that is commonsense and I hope that it is helpful.
10.30 p.m.
Baroness Blatch: My Lords, in principle I do not disagree with the suggestion that we return to this group of amendments once we have seen the Bill in its new form, except to say that, whether either of the amendments survives in this Bill in this form, the oversight and monitoring arrangements do not change. That is what we are talking about as far as concerns those amendments. I find it difficult to see how circuit judges can be second-guessed by the commissioner, but that is by the by. I believe that it is appropriate to withdraw any amendments associated with my name on the Marshalled List and return to them at the next stage of the Bill when the dust has settled on today's proceedings. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos.43 and 44 not moved.]
The Deputy Speaker (Lord McColl of Dulwich): My Lords, if Amendment No. 45 is agreed to I cannot call Amendments Nos. 46 to 48.
[Amendments Nos. 45 to 49 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 50:
Page 36, line 43, at end insert—
("(5A) Where a person gives, renews or cancels an authorisation, he shall, as soon as is reasonably practicable, give notice in writing that he has done so to the Chief Commissioner appointed under section 95.
(5B) A notice shall be treated as given to the Chief Commissioner under subsection (5A) if it is given, in accordance with arrangements made by the Chief Commissioner, to any Commissioner appointed under section 95.
(5C) A notice under subsection (5A) shall specify such matters as the Secretary of State shall by order prescribe.
(5D) An order under subsection (5C) shall be made by statutory instrument; but no order shall be made unless a draft has been laid before, and approved by resolution of, each House of Parliament.").
The noble Baroness said: My Lords, in speaking to Amendment No. 50, I should also like to speak to Amendments Nos. 58, 61, 62, 66, 68, 70 to 72, 79, 82, 83, 86, 88, 91, 94, 97, 100, 104, 108, 110, 115, 116 and 120. The Government have noted the concerns expressed in this House and elsewhere that scrutiny of the decisions taken by chief officers might only be carried out some months after the authorisation, when it would be too late for the commissioner to intervene effectively. This is another amendment which will be affected by the amendments debated today. We have decided to strengthen the powers and monitoring role of the commissioner. Because that strengthening is an important part of the process, I want to put on record the Government's views about these amendments.
The group of amendments relating to Clause 93 require authorising officers to notify the commissioners of all authorisations as soon as reasonably practicable. In many cases this will put the commissioners in a position to be able to scrutinise the authorisation before an operation has begun. They would be able to quash any which they did not consider to have been properly given and effectively prevent the police or customs from carrying out the intrusive surveillance. This accelerated review process will not erode the crucial principle that

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chief officers alone must be responsible for their decisions, and it will not prevent the police from making the most of a window of opportunity, if this arose immediately. The police and customs need this flexibility to be able to work effectively.
For the record, I believe it is important that that is set against amendments passed earlier today. There is only one amendment to Clause 93, and it is the first. Amendment No. 50 to Clause 93 will enable the Secretary of State to make an order, subject to affirmative resolution of each House of Parliament, prescribing the information that needs to be given to the commissioners in order to carry out the review process. These proposed changes will considerably increase the workload associated with the overview function. The amendments to Clauses 95 to 97 and Schedule 7 therefore replace the existing provision for the appointment of a commissioner and provide for the Prime Minister to appoint a chief commissioner and such number of other commissioners as is deemed fit and achieve the necessary technical changes to the remainder of the Bill to give this effect. I appreciate that similar amendments have been tabled by the noble Lord, Lord McIntosh, and that there is some common ground on the need for this provision. We referred to this amendment much earlier in the debate on the main amendments.
The requirement for more than one commissioner follows directly from the amendments which have been tabled to Clause 93 requiring that all authorisations are notified to a commissioner as soon as practicable after they have been given. This need is further increased by the duty imposed on the commissioner to scrutinise notifications of operations involving particularly sensitive property or material within 48 hours of receipt. The increased workload that entails means that it is no longer realistic to expect a single commissioner to oversee effectively the authorisation process. The appointment of more than one commissioner is clearly necessary to ensure availability and speedy scrutiny.
The amendments would provide for the appointment of a chief commissioner and such number of other commissioners as required. All of the commissioners will hold, or will have held, high judicial office and will undertake the same statutory functions and be equipped with the same powers.
I believe that there is some common ground on this issue. I believe that these amendments apply much more to the amendments passed by this House in the name of the noble Lord, Lord McIntosh, than they do to those passed in the name of the noble Lord, Lord Rodgers of Quarry Bank. I beg to move.
Lord Lester of Herne Hill: I thank the Minister for that very helpful summary. I should briefly like to explain why I think that this is another area that will be affected by the amendment of the noble Lord, Lord Rodgers, as well as by that of the noble Lord, Lord McIntosh.
In his very powerful speech the noble Lord, Lord Alexander of Weedon, referred to decisions of the American Supreme Court. One of those decisions was
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that electronic surveillance should be within the scope of prior judicial authorisation. I refer to a famous case, United States v. United States District Court. It is reported in Volume 407 of the US Reports, on page 297. The case was decided in 1971. I respectfully commend it to those advising the Government when considering what is to be done about this kind of matter. The passage I have in mind relates to the decision of the American Supreme Court that there must be prior judicial authorisation of electronic surveillance. It says in a unanimous opinion:
"A prior warrant establishes presumptive validity of the surveillance and will minimize the burden of justification in post-surveillance judicial review".
In plain language that means that if the Government accept the Rodgers amendment or the McIntosh amendment—certainly the Rodgers amendment—one beneficial consequence will be that it will reduce the workload, expense and bureaucracy involved in what the Supreme Court termed "post-surveillance judicial review". In working out the balance between judicial authorisation and post-surveillance judicial review, the Minister and her colleagues may find the judgment and others quite helpful. It may be that they will come to appreciate the practical advantages for the police service and the Home Office as well as for the ordinary citizen in the requirements contained in both the amendments already carried by the House. That is why we should return to this matter when the Government have had a chance to take stock. I hope that this case will provide some useful guidance.
Baroness Hilton of Eggardon: My Lords, I agree with the noble Lord, Lord Lester. I think that, on the whole, with some probably detailed amendments, these would fit with the amendments passed earlier in that the appointment of a chief commissioner and a number of commissioners would also assist in the oversight of the whole system as proposed. However, it is difficult to address them in detail. Without examining the consequences of the previous amendments, it is not clear whether they will fit exactly. In the circumstances we welcome the broad thrust of the amendments.
Baroness Blatch: My Lords, first the amendment does not refer to the authorising officer. It relates to commissioner oversight responsibilities. Those responsibilities seem to be important, certainly in the context of one of the major amendments and the proposal set out in the Bill. Whatever happens, we take the view quite strongly that notification of every authorisation is an important strengthening safeguard and we wish to stand by that. For that reason I do not believe it would be harmful or prejudice any future discussions about which alternative was ultimately to be accepted so far as future tapping authorisation is concerned. I should like to strengthen the Bill in this way. The amendment offers an important safeguard. I commend it to the House.
On Question, amendment agreed to.
[Amendments Nos. 51 and 52 not moved.]
Clause 94 [Code of practice]:
Baroness Blatch Baroness Blatch moved Amendment No. 53:
Page 37, line 7, leave out ("may") and insert ("shall").
The noble Baroness said: My Lords, in moving Amendment No. 53, I shall speak also to Amendments Nos. 54 to 57. They achieve the effect of an amendment tabled in Committee by the noble Lord, Lord McIntosh. We have always intended to introduce a code of practice in connection with the provisions in Part III. The code of practice is a key document, forming an important component of the legislative package. The procedures for intrusive surveillance must be clearly set down for everybody to see. A government amendment in Committee to what is now Clause 121 ensured that these provisions could not be brought into force before the day on which the code of practice comes into operation. This implemented the recommendation of the Select Committee of the House of Lords on delegated powers and deregulation.
Although this, in effect, removes the discretion of the Secretary of State to issue a code of practice, it has left the remainder of Clause 94 defective. This group of amendments makes the necessary technical changes to the remainder of the clause. Taken together, these changes ensure that the Secretary of State must issue a code of practice and that it be brought into operation by means of statutory instruments. I beg to move.
Baroness Hilton of Eggardon: My Lords, we welcome the fact that the code of practice is to be made mandatory and that it is to be part of a statutory instrument. I am grateful to the Minister for bringing forward these amendments.
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendments Nos. 54 to 57:
Page 37, line 9, leave out from beginning to ("a") and insert ("Before issuing").
Page 37, line 10, leave out ("he") and insert ("the Secretary of State").
Page 37. line 15, leave out subsection (4) and insert—
("(4) The code of practice laid before Parliament in draft under subsection (3) shall not be brought into operation except in accordance with an order made by the Secretary of State by statutory instrument.").
Page 37, line 22, leave out ("force") and insert ("operation").
On Question, amendments agreed to.
Clause 95 [The Commissioner]:
Baroness Blatch Baroness Blatch moved Amendment No. 58:
Page 38. line 4, leave out ("a Commissioner") and insert—
("(a) a Chief Commissioner, and
(b) such number of other Commissioners as the Prime Minister thinks fit,").
On Question, amendment agreed to.
[Amendments Nos. 59 and 60 not moved.]
Baroness Blatch Baroness Blatch moved Amendments Nos. 61 and 62:
Page 38, line 6, leave out first ("person") and insert ("persons").
Page 38, line 6, leave out from ("be") to ("held") in line 7 and insert ("persons who hold or have").
On Questions, amendments agreed to.
Baroness Hilton of Eggardon Baroness Hilton of Eggardon moved Amendment No. 63:
Page 38, line 9, leave out first ("The") and insert ("Each").
On Question, amendment agreed to.
Baroness Hilton of Eggardon Baroness Hilton of Eggardon moved Amendment No. 64:
Page 38, line 11, leave out second ("the") and insert ("each").
On Question, amendment agreed to.
Baroness Hilton of Eggardon Baroness Hilton of Eggardon moved Amendment No. 65:
Page 38, line 13, leave out ("may") and insert ("shall").
On Question, amendment agreed to.
The Deputy Speaker The Deputy Speaker: My Lords, if Amendment No. 66 is agreed to I cannot call Amendment No. 67:
Baroness Blatch Baroness Blatch moved Amendment No. 66:
Page 38, line 13, after second ("the") insert ("Chief).
On Question, amendment agreed to.
[Amendment No. 67 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 68:
Page 38, line 14, leave out ("Commissioner") and insert ("Commissioners").
On Question, amendment agreed to.
10.45 p.m.
Baroness Hilton of Eggardon Baroness Hilton of Eggardon moved Amendment No. 69:
Page 38, line 14, leave out ("Secretary of State thinks") and insert ("Commissioners think").
On Question, amendment agreed to.
Baroness Hilton of Eggardon Baroness Hilton of Eggardon moved Amendment No. 70:
Page 38, line 15, leave out ("his") and insert ("their").
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 71:
Page 38, line 15, at end insert—
("() Anything authorised or required by or under this Part to be done by the Chief Commissioner may be done by any of the Commissioners who is authorised generally or specially in that behalf by the Chief Commissioner; and the references in section 96(4) and 97(4) to the Chief Commissioner shall be construed accordingly.").
On Question, amendment agreed to.
Clause 96 [Principal functions of Commissioner]:
Baroness Blatch Baroness Blatch moved Amendment No. 72:
Page 38, line 16, after ("The") insert ("Chief).
On Question, amendment agreed to.
Baroness Hilton of Eggardon Baroness Hilton of Eggardon moved Amendment
No. 73:
Page 38, line 16, leave out ("Commissioner") and insert ("Commissioners").
On Question, amendment agreed to.
Baroness Hilton of Eggardon Baroness Hilton of Eggardon moved Amendment
No. 74:
Page 38, line 18, at end insert—
("(aa) review every authorisation given under sections 91 and 93, and").
The noble Baroness said: My Lords, I beg to move.
Baroness Blatch: My Lords, perhaps I may help the House. This is definitely not a consequential amendment. It is free standing within the block of amendments and we wish to oppose it. It has been spoken to, but it is a convention of the House that when a block of amendments is put to the House, those amendments which are consequential are accepted. We have honoured that decision throughout. However, there were a number of amendments within that block which were free standing and non-consequential. Therefore, we wish to oppose the amendment.
Baroness Hilton of Eggardon: My Lords, the Minister places me in some difficulty on this point. The amendments were spoken to en bloc at the earlier stage and we had no notification that some of them were seen as non-consequential. They seem to fall within the same principle. I should be grateful if the Minister will tell us which other amendments within the block the Government will be opposing. I was not aware that this situation was going to arise.
Baroness Blatch: My Lords, it is extremely unconventional to be asked which future amendments we shall be opposing but we shall oppose Amendments Nos. 77, 80 and 89.
Lord Lester of Herne Hill: My Lords, is this not an example of the kind of problem to which the noble Lord, Lord Williams of Mostyn, and I were drawing attention? This amendment seeks to give the commissioner an additional, specific power to review every authorisation under Sections 91 and 93. Whether or not that power is desirable is greatly influenced by what judicial authorisation procedure is agreed to eventually by the House. Again, I find it difficult to achieve the right balance until one has taken stock of the Bill as a whole. I wonder therefore whether it is sensible to be dealing with these matters at this stage.
Baroness Blatch: My Lords, it is a pity that the noble Lord, Lord McIntosh, is not in the House at the moment. When he spoke to this group of amendments, he indicated to the House that he was happy with the Government's version of these amendments. Government Amendment No. 76 would achieve more successfully the effect of his amendment. When I listened to the noble Lord, I understood that he was happy with that.
Baroness Hilton of Eggardon: My Lords, in that event, I shall not press the amendment and I beg leave to withdraw it.
Amendment, by leave, withdrawn.
[Amendment No. 75 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 76:
Page 38, line 22, at end insert—
("(1A) In discharging his duties under subsection (l)(a), the Chief Commissioner shall scrutinise any notice given to him under section 93(5A); and, in the case of such notices as the Secretary of State shall by order prescribe, he shall carry out that scrutiny within the period of 48 hours beginning with his receipt of the notice.
(1B) An order under subsection (1A) shall be made by statutory instrument; but no order shall be made unless a draft has been laid before, and approved by resolution of, each House of Parliament.
(1C) Where, at any time, the Chief Commissioner determines that the person who gave or renewed an authorisation under this Part was not acting properly in doing so, he may—

(a) quash the authorisation, and

(b) order any records relating to the information obtained by virtue of the authorisation (other than records required for pending criminal or civil proceedings) to be destroyed.

(1D) In making a determination under subsection (1C), the Chief Commissioner shall apply the principles applied by a court on an application for judicial review.
(1E) Where the Chief Commissioner makes such a determination as is mentioned in subsection (1C), he shall make a report of his findings to the authorising officer who gave the authorisation or in whose absence it was given.
Paragraph 5 of Schedule 7 shall apply to this subsection as it applies to that Schedule.").
The noble Baroness said: My Lords, Amendments Nos.76 and 101 to 103 introduce important additional safeguards to the provisions of the Bill. They place a duty on the commissioners to scrutinise all notifications sent to them by authorising officers and to ensure that authorisations in certain specified categories are scrutinised within 48 hours of receipt.
Those categories of authorisations subject to speedy scrutiny will be specified by a statutory instrument which will be approved by Parliament but should include those matters subject to legal privilege, journalistic material and medical records. That will ensure that operations involving particularly sensitive material will be seen quickly by the commissioners, and, in most cases, before an operation is even started. It also provides the commissioners with the power to quash authorisations where they do not consider they have been properly given and order the destruction of any material so obtained.
In scrutinising the authorisations, the commissioners will apply the principles of judicial review. We believe that an important distinction needs to be drawn between the roles of the authorising officer and the commissioners. The authorising officer is part of the investigation process and will be making an operational judgment based on his knowledge and expertise about policing methods. He will be considering whether there is any alternative way of carrying out the operation which does not involve intrusive surveillance and which should be tried first. The commissioners' role is to supervise the decision-making process to ensure that the criteria and provisions of the Bill have been properly applied. Again, under the amendment, the commissioner continues to have that role regarding whoever makes the decision.
The role of the commissioners is not to "second guess" the decisions of the operational officers. Their training is in the law and they should apply the same principles which are used in judicial reviews. These are that the decision is a reasonable one, that there has been no procedural impropriety in the way that the decision was reached or that there was a legal basis for the decision. The other amendments tie these new powers in with those already outlined in Schedule 7 or are semantic ones which do not effect changes to the powers of the Bill. I beg to move.
Lord Williams of Mostyn: Perhaps I may remind the House that we have reached a position which entirely indicates the concerns already expressed by the noble Lord, Lord Lester, and myself. We are now erecting quite a laborious superstructure on a basis the nature of which we are unaware. We are talking about a scheme which depends on a scheme put forward by the Government but which has now been overtaken by the two amendments that were carried earlier. Therefore, whichever of the two finds its way into the Bill, we are really dealing with a wholly irrelevant superstructure.
Baroness Blatch: To use colloquial language, we now have a "dog's breakfast" of a Bill. Members of the House voted for two amendments which conflict in many ways and which make it impossible for anyone of make any sense of the legislation. Therefore, to accuse me of simply trying to strengthen the way in which the commissioner and the oversight provisions work and of making a nonsense of the Bill is something which, frankly, I cannot accept. It seems to me that these are important amendments which we would like to put on the face of the Bill. We have as much right to do so as noble Lords opposite have to make an equal nonsense of the Bill.
Lord Lester of Herne Hill: The Minister may have misunderstood. No criticism whatever was intended of the noble Baroness or, indeed, of her colleagues. We have before us beneficial amendments proposed by the Government. For my part, they are most welcome. The only point is that part of the speech made by the Minister in their support was predicated upon the authorising officer not being a judge. That gave rise to some understandable misunderstanding. To get the balance right, I also believe that it is sensible to look at the post-review surveillance machinery in the light of the judicial authorisation.
If we have a "dog's breakfast" it is really no-one's fault; it is simply that the House expressed its view. However, perhaps it is someone's fault—indeed, many people's fault. The "dog's breakfast" needs to be made into a human breakfast and that, as I understand it, cannot be done this evening. As I said, no criticism of the Minister was intended in this connection. I believe that the proposed amendments are entirely beneficial, although they may have to be reviewed at a later stage in the light of certain earlier amendments.
Lord Williams of Mostyn: I entirely endorse what the noble Lord has said. No criticism was intended at
496
all. Indeed, I hope that the tone I adopted was not a critical one. The Minister and I often agree; I entirely agree that this is a dog's breakfast. All I am suggesting to your Lordships is that giving the dog another bit of Bonio does not assist the proceedings of the House. It is not a criticism of the Minister at all; but, with great respect, I do not believe that having detailed amendments of this sort on an uncertain basis is a sensible way to proceed.
Baroness Blatch: My Lords, we withdrew some amendments earlier, partly because I started off rather badly in not being prepared for Amendment No. 42. However, so far as these amendments are concerned, it seems to me that we have a very schizophrenic House today. We have a House that has voted all ways and been facing all ways at the same time. I see no reason, given that these are strengthening measures, to say that they are as incongruous to this Bill as is the amendment of the noble Lord, Lord Rodgers of Quarry Bank, to that of the noble Lord, the Lord McIntosh. I should like to put them on the face of the Bill because I think it important that at least these safeguards can be taken into account in any discussions that will take place when this stage of the Bill is over. I beg to move.
On Question, amendment agreed to.
Baroness Hilton of Eggardon Baroness Hilton of Eggardon moved Amendment
No. 77:
Page 38, line 22, at end insert—
("() The powers of a Commissioner to investigate a complaint shall not prevent a person making a complaint under Part IX of the Police and Criminal Evidence Act 1984.").
The noble Baroness said: My Lords, this amendment was spoken to in the earlier group but I understand from the Minister that she is ungrouping it at this stage in the Bill. It relates to the rights of an innocent individual who has a bug planted inappropriately in his or her house or car and gives the right, which such a person currently has in respect of all other police action, to complain to the Police Complaints Authority. It seems appropriate in a situation where a person's rights and liberties as an individual have been violated that he or she should have appropriate recourse to the Police Complaints Authority. These matters should not be excluded but should be matters of supervision by the Police Complaints Authority. There should be openness about the use of these forms of surveillance, as in relation to all other aspects of police duty, as is appropriate within a democracy. I beg to move.
Baroness Blatch: My Lords, I gave notice that we would be looking at some of the free-standing amendments within that group and that we would choose to oppose some. This is one such, and I gave notice to the noble Baroness a moment ago.
There is nothing in the provisions of Part III of the Bill which would restrict or limit the present powers and functions of the Police Complaints Authority and therefore I do not believe that the amendment is necessary. The commissioner will be concerned with the operational decisions of authorising officers; the Police Complaints Authority, on the other hand, will remain

497
responsible—as it is now—for the investigation of complaints regarding the conduct and behaviour of officers.
I return to a point made at Committee. If, in the course of his investigation of a complaint, the commissioner finds that intrusive surveillance has been carried out with the authorisation of an authorising officer or that, for example, unnecessary force or damage has been caused, it would remain a matter for the chief constable to investigate under the normal complaints procedure, involving the Police Complaints Authority as necessary. With the complainant's consent, there is nothing to stop the commissioner referring such matters to the chief constable for the appropriate investigation.
In the light of those comments, particularly because there is nothing in this Bill which would restrict or limit the present powers and functions of the Police Complaints Authority, I hope that the amendment will not be pressed.
Baroness Hilton of Eggardon: My Lords, I am grateful for that assurance. It is extremely important that all citizens should have recourse to the Police Complaints Authority as appropriate. We were particularly concerned—because it was clear at one stage that the commissioners would be operating very much behind the scenes, not being required to give reasons for their decisions, and so on—that other ways of complaint or objection to what had happened should be open to the public. In the circumstances, I will withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 78 not moved.]
11 p.m.
Baroness Blatch Baroness Blatch moved Amendment No. 79:
Page 38, line 25, after ("The") insert ("Chief).
The noble Baroness said: My Lords, I have already spoken to this amendment with Amendment No. 50. I beg to move.
On Question, amendment agreed to.
The Deputy Speaker: My Lords, if Amendment No. 80 is agreed to, I cannot call Amendments Nos. 81 and 82.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 80:
Page 38, line 30, leave out subsection (4).
The noble Lord said: My Lords, Clause 96(4) states:
"The decisions of the Commissioner under this Part (including decisions as to his jurisdiction) shall not be subject to appeal or liable to be questioned in any court".
The question I raise is the following. Assuming that a chief officer of police makes what he is convinced is a necessary application, and is absolutely certain that it is in the overall public interest that the application should be granted, and assuming his application is not granted, should there not be the opportunity for a chief constable,
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in what I readily accept would be rare and exceptional circumstances, to appeal? That is certainly something that the Government might wish to think about. I beg to move.
Baroness Blatch: My Lords, we have some difficulty in seeing how this would work. Removing the subsection would leave the accountability arrangements unclear and would open the decisions of the commissioner to judicial review and appeal. Under the amendments agreed there is no appeal process. The commissioner is a High Court judge, past or present, and it would be entirely new for the decision of a High Court judge to be questioned in this way. It would bring the commissioner into the domain of operational decision making which we believe would inevitably lead to his being questioned on his decisions in a number of cases and might lead to criminal prosecution. That must undermine the role and the function of the commissioner.
Lord Lester of Herne Hill: My Lords, before the Minister sits down, I do not quite understand the position. Unless I am completely mistaken, the commissioner is applying judicial review principles. He is not taking operational decisions himself. That is the vital point. He applies judicial review principles. What I do not understand—
Baroness Blatch: My Lords, with the leave of the House, and if the noble Lord will forgive me, we were discussing Amendment No. 80 in the context of the amendment of the noble Lord, Lord McIntosh. The amendment of the noble Lord, Lord McIntosh, gives the operational decision to the commissioner.
Lord Lester of Herne Hill: My Lords, we are also discussing the context of the amendment of the noble Lord, Lord Rodgers. That is why the whole thing is so bizarre. Let us assume that a judge approves the surveillance warrant, as with a search warrant, and then one has ex-post facto review by the commissioner, looking at the propriety of what is being done. That is a perfectly intelligible situation which one would have under ordinary law. In the ordinary way this would go to a judicial review court applying the ordinary principles of English administrative law. What Clause 96(4) states at the moment is that there is no appeal and the decision is not liable to be questioned in any court.
What I do not understand is, what is the policy objection to allowing even a High Court judge's decision to be able to be questioned in any court if he goes wrong in the way that he applies judicial review principles? I do not understand why that is considered to be objectionable in any way as he is not taking the operational decision; he is acting as though he were a judicial review court effectively in applying those principles. Unless I am mistaken about that, it seems to me that he should be able to have his decision challenged thereafter. If he goes wrong in law, the

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ordinary courts should be able to correct him. He should not be immune from law any more than any other person should be immune from the legal process.
Baroness Blatch: My Lords, this is an instance where I think noble Lords should take the matter away and reflect on the impact of two schizophrenic amendments which have been passed today. They now sit very uncomfortably together on the face of the Bill, or will do when we have the reprint of the Bill. We have in Amendment No. 80 a proposition which makes little sense in terms of how it will work in practice. I take issue with the noble Lord who keeps talking about the new authorising officers, whether it be a circuit judge or the commissioner, not taking operational decisions. The commissioner under the amendment of the noble Lord, Lord McIntosh of Haringey, will be approving this operation, hat is what the amendment said. The commissioner's role, of course, is to scrutinise, monitor and review his own decisions.
We believe that this is an ill-thought out measure, and for that reason we are opposing it. We believe that it merits being taken away and given more thought.
Lord Lester of Herne Hill: My Lords, can I correct that? The reason why the circuit judge or commissioner does not take an operational decision is that the operational decision is that of the police. The function of the judge at the outset is to decide whether the operational decision is according to the rule of law. That is the situation in every other democracy. Whether European or common law, it is always the judge who does it, and it is always well established that that is not an operational decision. If it were an operational decision then the judges would be running the police service, which is not at all the position of the Opposition parties. The judges are there to do the judging and the police are there to do the policing, but the police are accountable to the rule of law.
Lord Williams of Mostyn: My Lords, the Minister said, I believe rightly, that when one looks at this amendment it is in the context of the commissioner as introduced by the McIntosh amendment. The commissioner as approved by the McIntosh amendment is that judicial person whose prior approval is required before any bugging or intrusive activity can take place. If the Minister is right, and I believe she is, and we look at it in the context of the McIntosh amendment commissioner, the question I put was why, assuming a chief constable was convinced that the commissioner had got it wrong, the chief officer of police should not have the opportunity to appeal?
Baroness Blatch: My Lords, if that were the case, I see no reason why the chief officer should not simply reapply and put in a new application.
Lord Williams of Mostyn: My Lords, I believe that in the robing room that is called "forum shopping" and that that is the objection to it. I beg leave to withdraw the amendment, having pointed out, I hope, one or two infelicities in the situation in which we find ourselves.
Amendment, by leave, withdrawn.
[Amendment No. 81 not moved.]
Baroness Blatch Baroness Blatch moved Amendments Nos. 82 and 83:
Page 38, line 30, after second ("the") insert ("Chief).
Page 38, line 34, after ("the") insert ("Chief).
On Question, amendments agreed to.
[Amendment No. 84 not moved.]
Schedule 7 [Investigation of Complaints by Commissioner etc.]
[Amendment No. 85 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 86:
Page 68, line 10, after ("the") insert ("Chief).
On Question, amendment agreed to.
[Amendment No. 87 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 88:
Page 68, line 14, after ("the") insert ("Chief).
On Question, amendment agreed to.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 89:
Page 68, line 15, leave out from ("shall") to ("determine") in line 16 and insert ("consider all the circumstances of the case and shall").
The noble Lord said: My Lords, I thought the Minister had indicated that this was an amendment which the Government were proposing to oppose. I move it because, according to my understanding, it was grouped with Amendment No. 24. My understanding of the procedure of this House is that if an amendment is grouped with a previous amendment that has been carried, unless there has been explicit prior indication that anybody thinks it is not consequential it ought to be approved by the House without a Division. Notice was given that the amendments in the name of the noble Lord, Lord Rodgers of Quarry Bank, were not consequential. There was no indication from the Government that they had any intention of taking separately the amendments to which we are now talking, which include Amendment No. 89 and did include Amendments Nos. 80, 77, 74 and 65. I must formally record my objection to their opposition to these amendments since they had not indicated that they were going to object to the consequential nature which we had claimed for them when we moved Amendment No. 24.
Amendment No. 89 is concerned in Schedule 7 with the specific case that we discussed earlier and in which my noble friend Lord Williams took part. Schedule 7 provides—this is fundamental to the commissioner's work—that in carrying out his review of the determination, the commissioner applies the principles applied by a court on an application for judicial review.
As I said when this matter was debated earlier, I am not a lawyer and I am not familiar with the correct terminology, but my understanding is that something can be overturned by judicial review only if it is utterly unreasonable—someone has used the word "perverse".
We believe that to be the wrong criterion to be applied to the work of the commissioner, and that fundamentally the commissioner should be considering all the circumstances of the case rather than looking for perversity in the decision of the person authorising the intrusive surveillance.
Just to anticipate what the Minister may say in her reply, I do not believe that that is affected by the fact that Amendment No. 24 has been agreed to. We now have the position that there will be a body of commissioners rather than one commissioner. It is obvious that the sensible way for that body of commissioners to proceed is that when Commissioner A gives approval under Amendment No. 24 a different commissioner shall be responsible for the review. After all, that is what happens in the judiciary all over the place: judges are reviewing the work of other judges and making further judgments upon them. There is nothing difficult, illogical or unprecedented about that. When that review or determination takes place, it should take place after a proper consideration of all the facts rather than on the much more restricted basis on which a judicial review takes place. I beg to move.
Lord Rodgers of Quarry Bank: My Lords, I intervene only to raise in the presence of the Government Chief Whip the question of how long we shall continue with the Business of the House. It has been plain since the two amendments were carried earlier that the House was faced with genuine difficulties. I agreed when the Minister said that serious difficulties had been created as a result of the carrying of those amendments which in some respects are contradictory.
I moved the consequential amendments to the main amendment which had been agreed by your Lordships' House, and I think that the Government accepted that they should naturally follow. We have been discussing a number of amendments which are consequential upon Labour Amendment No. 24. We are not performing our function properly, and the Bill is not being subject to the scrutiny that the public deserve. This is not a party political point, and I hope not a controversial one.
The Bill has proved to contain more than anyone previously imagined. Although the Government may not like the amendments for judicial authorisation which have been carried, I do not believe that any Minister would deny that that debate was a very proper one, and that a decision by your Lordships' House, one way or another, was part of its proper scrutiny of the Bill.
When I look not just at the amendments which remain in the present part but those to be considered in Part V, I am appalled that we should set off on them between now and midnight and no doubt into the next day. It might very well be into 1998 were there not a general election intervening. It is not to the credit of your Lordships' House that we continue when we are all tired. The Minister has done a yeoman job, an extremely difficult one, and has managed the brief extremely well in hard circumstances. But she too is tired, however much she would wish to deny it.
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I want to put it now to your Lordships that it would be wise to adjourn, that all parties would do their best to find a suitable opportunity early next week not to delay this Bill, because all of us in the House want to see this Bill, in so far as it deals with serious and organised crime, on the statute book reasonably quickly and, at the same time, compatible with proper scrutiny. I hope very much that that proposition will be considered.
If it is to be rejected, I ask that there should be a clear indication to your Lordships as to how much longer we are to carry on. I hope very much that it will include a clear statement that there are too many important matters in this Bill for them to be discussed tonight and, indeed, the Bill and the Home Secretary and Ministers would be subject to much justifiable criticism if we were to continue in the way that we are now doing.
11.15 p.m.
Lord McIntosh of Haringey: My Lords, I have already spoken on this amendment so, before the noble Lord sits down, may I add my support to what he has said? I had already indicated to the Government Chief Whip my conviction that the proper thing to do would be for us to complete Part III of the Bill, rather than intervening now, but still, certainly not to consider the very important matters which are contained in Part V of the Bill at what would be likely to be after midnight.
We have had the benefit of the contributions in this debate of a number of very distinguished noble Lords: Lord Justices of Appeal, Law Lords, previous Law Lords, previous Home Secretaries, a previous Attorney General, a past Prime Minister. None of them is here now. Nobody can blame them for that. They cannot contribute to the quality of your Lordships' debate as they did earlier on this afternoon. Surely, the proper thing for us to do, in the light of the determination of this House, as expressed last year, to debate things at a sensible time and in a sensible way, is to accept the suggestion of the noble Lord, Lord Rodgers and, if not now, certainly at the end of the consideration of Part III of the Bill to adjourn the consideration on Report until an early time, preferably this week, so that the matter can be properly discussed in the presence of a full House, rather than in the very limited scope for debate that we have at the moment. I would ask the Government Chief Whip, if that is the proper way for this to be addressed, to give us his views on this matter.
Baroness Blatch: My Lords, it will not be the first time that large numbers of noble Lords have been in this Chamber and have stayed only for the amendments in which they have an interest and have then departed the Chamber, very often much earlier in the day. So I do not regard that as a very good reason for curtailing our proceedings at this moment.
If there was any case whatsoever for accepting the advice of the noble Lord, Lord Rodgers, and the noble Lord, Lord McIntosh, it would have been perhaps earlier on in Part III, because if there is any cool reflection to be done at all on the effects of the amendments passed earlier in the day, it would be in relation to Part III. We are almost through Part III now. This has been in the diary for a very long time. It has been agreed through

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the usual channels. I am certainly prepared to see through the work of this part of the Bill today. All noble Lords were informed that this would be one day on Report and that the proceedings would be completed today. It is my view that we should get on and do that now.
Lord Rodgers of Quarry Bank: My Lords, the noble Baroness the Minister has referred to this part of the Bill, and I understood, until her final sentence, that she was making the suggestion that we should complete the consideration of Part III and that should be the end of the business for today. She referred to parts of the Bill. Is the noble Baroness now saying that it is not the endurance of Members of your Lordships' House which is at stake, but the credibility of the Bill and the credibility of the House in the eyes of the public? Is the noble Baroness indeed saying that, irrespective of progress, we should go on and on to complete the amendments on the Marshalled List? Is she saying that we should do that irrespective of the quality of our discussion and to whatever hour we go on?
Baroness Blatch: My Lords, I do not think it helps the issue of how long we take on this part of the Bill by continuing this debate. I feel that we should move on and complete the Report stage of the Bill tonight. I said that if there were a case at all for curtailing our proceedings, it would have made more sense and been more logical to have considered not taking Part III today while we reflected on the impact of the two amendments. They do not have an impact on the rest of the Bill.
I believe that we should now make haste and move on to the next part of the Bill. In the meantime, we have not completed the amendment on the Marshalled List which is before the House at the moment.
Lord Hacking: My Lords, I am not quite sure of the present position. Are we still considering Amendment No. 89? If so, perhaps I may intervene on that amendment.
I am a lawyer and confess—if the noble Lord, Lord McIntosh, will allow me to say so—that I am not wholly in agreement with his definition of the application of judicial review. But having said that, it seems to me that it is an administrative act that the commissioners are being invited to perform under paragraph 1(2) of Schedule 7. It seems to me that this amendment applies the right test for an administrative action by the commissioner and it is not appropriate to apply the judicial review test, although, as I said just now, the noble Lord's definition of judicial review is one with which I cannot wholly agree.
Baroness Blatch: My Lords, I find this an extraordinary amendment in the context of the main amendment that was passed this afternoon. The commissioner would review the merits of the decision of the authorising of intrusive surveillance when a complaint was made to him. But the commissioner is making the decision. He is giving the approval for the authorisation. This amendment would give the
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commissioner the power to review the merits of his own decision making, where he approves intrusive surveillance. I find that this amendment makes no sense whatsoever.
Lord McIntosh of Haringey: My Lords, I am afraid that that is exactly the reason why we should not continue our consideration of this Bill tonight. That is why the noble Lord, Lord Rodgers, is correct. I should have been glad to have taken instruction from the noble Lord, Lord Hacking, about the meaning of judicial review principles. I am sorry that I have been denied that opportunity. I do not find the Minister's view on this amendment helpful.
I am seriously considering whether, so far as concerns the Opposition, we should simply not move any of our amendments on Part V and bring them all back at Third Reading. In my view, that would be in breach of some of the conventions of this House because a Third Reading is supposed to be limited to matters which cannot be resolved earlier. But if we cannot resolve matters in a civilised way at a civilised time of day, we shall have no alternative but to do that. I do not believe that it is the way that your Lordships should consider Bills. But if we get to midnight and are still on matters of such fundamental importance as criminal conviction certificates and criminal record certificates, I give notice that it is highly likely that we shall simply move all that business to Third Reading, at the expense of the proper consideration that we should wish to have. I beg leave to withdraw Amendment No. 89.
Amendment, by leave, withdrawn.
The Deputy Speaker: My Lords, in calling Amendment No. 90, I must tell the House that if that amendment is agreed to, I cannot call Amendment No. 91.
[Amendment No. 90 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 91:
Page 68, line 19, after first ("the") insert ("Chief).
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 92:
Page 68, line 21, at end insert (", and
(b) make a report of his findings to the authorising officer who gave the authorisation or in whose absence it was given and, under section 97(1), to the Prime Minister.").
The noble Baroness said: My Lords, the amendments tabled to Schedule 7 and Clause 97 are closely linked.
The purpose of the first amendment to Clause 97 is to clarify more specifically the grounds on which the Prime Minister may exclude material from the commissioner's report laid before Parliament. As presently drafted, the Bill limits the discretion of the Prime Minister to excluding material prejudicial to the continued discharge of the functions of any police authority, service authority, etc. This amendment makes it clear that material may also be excluded on the grounds that its inclusion would be prejudicial to the prevention or detection of serious crime. The amendment seeks to ensure greater consistency between

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those respective roles and the discretion available to the commissioner and the Prime Minister and is in line with the powers of the Prime Minister to exclude material in IOCA.
The amendment to delete Clause 97(5) is necessary, as the Bill, as presently drafted, does not allow the commissioner to give the reasons for his decisions without the consent of the originator of the document or information provided to him. The wording of this clause is clearly at odds with the amendment to Schedule 7, which requires the commissioner to report his findings to the authorising officer who gave the authorisation and to the Prime Minister. It is right that the commissioner should have full discretion to disclose information about the exercise of these powers to the Prime Minister and so that he can report any concerns about the way the provisions are being used. It is also right that the authorising officer should be informed of reasons why an authorisation has been quashed and the destruction of records ordered, especially as the authorising officer may well be required to pay compensation, although that is a question still to be answered. This would not be possible if the commissioner did not have the discretion to disclose documents.
I hope therefore that the amendments will be welcomed. I beg to move.
Lord McIntosh of Haringey: My Lords, on the face of it, there can be no objection to Amendment No. 92 and its consequential Amendment No. 95. The fact that the Commissioner should make a report of his findings to the authorising officer is entirely proper, although of course there will have to be a consequential amendment following the passage of Amendment No. 24.
I worry when I look at Amendments Nos. 118 and 122, which are grouped with Amendment No. 92. Amendment No. 118 restricts the publication of the report and Amendment No. 122 removes the restriction on disclosure without consent. When I was notified of the intention to group these amendments together, I expressed my surprise that it was thought that amendments which appeared to go in opposite directions should be consequential one upon the other. I expressed that surprise before the grouping of the amendments was finalised. I would still welcome a explanation from the Minister as to why what appear to be not mutually contradictory amendments in the literal sense but amendments moving in different directions should be grouped together in this way.
On Question, amendment agreed to.
[Amendment No. 93 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 94:
Page 68, line 23, after first ("the") insert ("Chief).
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 95:
Page 68, line 25, at beginning insert ("Subject to sub-paragraph (1Kb),").
On Question, amendment agreed to.
[Amendment No. 96 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 97:
Page 68, line 25, after ("The") insert ("Chief).
On Question, amendment agreed to.
Baroness Hilton of Eggardon Baroness Hilton of Eggardon moved Amendment No. 98.
Page 68, line 25, leave out ("not give any") and insert (",provided that to do so would not be prejudicial to the continued discharge of the functions of any police authority, the functions of the Service Authority for the National Criminal Intelligence Service or the Service Authority for the National Crime Squad or the duties of the Commissioners of Customs and Excise, give his").
The noble Baroness said: My Lords, we are back to the commissioner not having to give reasons for a determination and not having to answer in any court. This amendment attempts to provide that he will give reasons for a determination, for his decision, provided that doing so would not be prejudicial to the functions of a police authority, or to the service authority for NCIS or to the service authority for the National Crime Squad.
We are again attempting to put some greater degree of openness into the system. Unless there are operational reasons why the commissioner should not give reasons for a determination, it should be exposed to the public gaze and the public should be aware of any reason that he may have for deciding that an authority has or has not been properly given for the use of surveillance equipment. We see it as an important safeguard of civil liberties that so far as possible without jeopardising operational efficiency and effectiveness the commissioner's actions should be open and the actions of the police should be open to scrutiny. I beg to move.
11.30 p.m.
Baroness Blatch: My Lords, again I must point out the parallels between the provisions contained in this Bill relating to the role and functions of these commissioners and those of the other commissioners. All will be dealing with serious crime and we see no reason why the role of a surveillance commissioner should be different.
The amendments tabled allow a commissioner to give reasons for his determination to the Prime Minister and the authorising officer. This is necessary if the authorising officer is to know why the commissioner does not believe an authorisation should have been given. The commissioner can also give reasons to the Prime Minister so that the Prime Minister will be aware of any concerns about the way in which these provisions are being used. It would, though, be extremely difficult for the commissioner to give reasons for his determination to a complainant without revealing details of the activities of the police and Customs and revealing damaging information about the techniques and methods being used. It would also, doubtless, lead to insubstantial complaints being made by criminals merely to test whether they are the subject of surveillance. I believe that the amendment would be the criminal's friend. I hope it will not be pressed.
Baroness Hilton of Eggardon: My Lords, my concern is for the innocent person who has been

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subjected to these surveillance techniques. Of course I have no concern for criminals in this situation, but inevitably mistakes will be made and innocent people will have bugs planted in their houses or have their telephones tapped or be subjected to other methods of surveillance. It is curious that the Government are not concerned for innocent people who may be exposed to these methods of surveillance. In a democracy it is surely important that these methods should be as open as possible to scrutiny.
There is the idea that people do not know about this equipment. However, one can buy it at Heathrow. One can buy a vast array of surveillance equipment in the duty-free part of Heathrow airport. There are also shops selling it. I saw one off Queensway the other day which sells this surveillance equipment. People who read thrillers, as I do, are well aware of the equipment that is available. Police often have the notion that things are secret when they are not. Sophisticated criminals of the kind we are talking about will be well aware of the equipment that is available.
I am concerned to protect innocent people who may be subjected to this surveillance in their homes. It is not a question of protecting criminals. In this amendment we have provided exemptions for situations where operational effectiveness would be jeopardised. I am talking about the innocent citizen who is subjected to bugging in his house. That is something the Minister seems to fail to gather when she talks about amendments supporting criminals. Nevertheless, at this late hour, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 99 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 100:
Page 68, line 28, after ("the") insert ("Chief).
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendments Nos. 101 to 104:
Page 68, line 29, leave out from ("may") to the end of line 34 and insert ("(whether or not he has exercised, or intends to exercise, the powers under section 96(1 C))").
Page 68, line 35, leave out ("granted") and insert ("gave").
Page 68, line 36, leave out ("granted") and insert ("given").
Page 68, line 37, after ("the") insert ("Chief").
The noble Baroness said: My Lords, these amendments have already been dealt with. I beg to move.
On Question, amendments agreed to.
[Amendment No. 105 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 106:
Page 68, leave out lines 38 to 44.
The noble Baroness said: My Lords, this amendment is grouped with Amendments Nos. 109, 121 and 126. These amendments are intended for the purposes of clarification and interpretation only. They are intended to provide clarification and assist in the interpretation of certain of the Bill's provisions. Amendment No. 126 represents a transfer of the
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definition of criminal proceedings from where it was previously located in Schedule 7. Amendment No. 106 deletes the previous reference. These changes are necessary as there is now more than one reference to criminal proceedings in the Bill and it is more appropriate that this definition be included in the specific interpretation clause. Amendment No. 109 is also intended for clarification and interpretation. Paragraphs (b) and (e) of Clause 91(6) refer specifically to the Metropolitan Police and the Royal Ulster Constabulary. These are the biggest police forces in the United Kingdom, and the operational demands on them are reflected in the fact that the Bill makes provision for more than one authorising officer. This amendment confirms that any written notification of reasons for an adverse decision from a commissioner will be directed either to the commissioner of police or the chief constable of these particular forces, as appropriate.
Amendment No. 121 ensures that the reference to serious crime is correctly read in accordance with the definition in Clause 91(5). I beg to move.
On Question, amendment agreed to.
[Amendment No. 107 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 108: Page 68, leave out lines 38 to 44.
The noble Baroness said: My Lords, I have already spoken to this. I beg to move.
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 109:
Page 69, line 10, at end insert—
("Interpretation
5. The references in this Schedule to the authorising officer who gave the authorisation or in whose absence it was given shall, in the case of an authorisation given by or in the absence of a person within paragraph (b) or (e) of section 91(6), be construed as references to the Commissioner of Police or, as the case may be, the Chief Constable mentioned in the paragraph concerned.").
The noble Baroness said: My Lords, I spoke to this amendment with Amendment No. 106. I beg to move.
On Question, amendment agreed to.
Clause 97 [Supplementary provisions relating to Commissioner]:
Baroness Blatch Baroness Blatch moved Amendment No. 110:
Page 38, line 35, after first ("The") insert ("Chief).
The noble Baroness said: My Lords, this amendment was spoken to with Amendment No. 50. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 111 to 114 not moved.]
Baroness Blatch Baroness Blatch moved Amendments Nos. 115 and 116:
Page 38, line 39, after ("the") insert ("Chief).
Page 39, line 1, after first ("the") insert ("Chief).
The noble Baroness said: My Lords, both these amendments were spoken to with Amendment No. 50. I beg to move.
On Question, amendments agreed to.
[Amendment No. 117 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 118:
Page 39, line 2, after ("to") insert ("the prevention or detection of serious crime or otherwise to").
The noble Baroness said: My Lords, I spoke to this with Amendment No. 92. I beg to move.
On Question, amendment agreed to.
[Amendment No. 119 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 120.
Page 39, line 8, after ("the") insert ("Chief).
The noble Baroness said: My Lords, this was spoken to with Amendment No. 50. I beg to move.
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 121:
Page 39, line 10, at end insert—
("() In this section, "serious crime" shall be construed in accordance with section 91(5).").
The noble Baroness said: My Lords, this was spoken to with Amendment No. 106. I beg to move.
On Question, amendment agreed to.
The Deputy Chairman of Committees (Baroness Cox): Amendment No. 122: I should point out that if this amendment is agreed to I cannot call Amendment No. 123 because of pre-emption.
Baroness Blatch Baroness Blatch moved Amendment No. 122:
Page 39, line 11, leave out subsection (5).
The noble Baroness said: My Lords, this was spoken to with Amendment No. 92. I beg to move.
On Question, amendment agreed to.
[Amendment No. 123 not moved.]
[Amendments Nos. 124 and 125 not moved.]
Clause 98 [Interpretation of Part III]:
Baroness Blatch Baroness Blatch moved Amendment No. 126:
Page 39, line 17, at end insert—
(""criminal proceedings" includes—
(i) proceedings in the United Kingdom or elsewhere before a court-martial constituted under the Army Act 1955, the Air Force Act 1955 or the Naval Discipline Act 1957 or a disciplinary court constituted under section 50 of the Act of 1957,
(ii) proceedings before the Courts-Martial Appeal Court, and
(iii) proceedings before a Standing Civilian Court;").
The noble Baroness said: My Lords, I spoke to this amendment with Amendment No. 106. I beg to move.
On Question, amendment agreed to.
Schedule 8 [The Police Information Technology Organisation]:
Baroness Blatch Baroness Blatch moved Amendment No. 127:
Page 71, line 10, at end insert—
(".—(1) The Organisation shall be liable in respect of a tort committed by a member of a police force engaged on service with the Organisation in the performance or purported performance of his functions in like manner as a master is liable in respect of torts committed by his servants in the course of their employment, and shall in respect of any such tort be treated for all purposes as a joint tortfeasor.
(2) In relation to Scotland, sub-paragraph (1) shall not apply but the Organisation shall be liable in reparation in respect of a wrongful act or omission on the part of a member of a police force engaged on service with the Organisation in the performance or purported performance of his functions in like manner as a master is so liable in respect of any wrongful act or omission on the part of his servant in the course of the servant's employment.").
The noble Baroness said: My Lords, in speaking to Amendment No. 127 I shall speak also to Amendment No. 188. These two amendments are technical in nature and among other things paragraph 80 of Schedule 9 provides that the Police Technology Organisation shall be liable for torts committed by police officers while on secondment to the organisation. The provision is defective in that it only makes PITO liable for torts committed by officers on secondment from forces in England and Wales. The replacement provision to be inserted in Schedule 8 ensures that PITO is liable for torts committed by seconded constables from all parts of the United Kingdom. I beg to move.
On Question, amendment agreed to.
Clause 102 [Criminal conviction certificates]:
Lord Rodgers of Quarry Bank Lord Rodgers of Quarry Bank moved Amendment No. 128:
Page 40, line 42, at end insert—
("(1A) The Secretary of State shall issue a Criminal Conviction Certificate to any individual who seeks nomination for election to Parliament under the Representation of the People Act 1983, which certificate shall require to be lodged with the Returning Officer as a condition of nomination and to be open to public inspection.").
The noble Lord said: My Lords, if I were to pause a moment that might enable the Government Chief Whip to do the wise and sensible thing. As we have completed one part of the Bill, may I invite the noble Earl the Whip to rise in his place and, in the interests of the way in which we conduct our business and the regard in which this House is held, suggest that the very important issues which still lie before us should not be taken today but should be postponed until next week. We have already made it clear that the important decisions taken earlier today by the House need careful thought by the Home Secretary. I shall give the Whip the opportunity to rise and to suggest that instead of proceeding with Third Reading next week, we should deal with the rest of Report stage. I shall pause for a moment to enable some response to be given.
Baroness Blatch: My Lords, I can speak for my noble friend. I know that he has given serious consideration to this question. He is not only aware that it has already been raised in the Chamber, but

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was aware that it was going to be raised in the Chamber. My noble friend has considered the matter carefully and has suggested—and I absolutely agree— that we should continue as planned to complete this Report stage.
Lord Rodgers of Quarry Bank: My Lords, if this is to be an endurance test, we are up to it. We shall continue to debate these important issues, but it should be on the record that we are letting down the public and all those who are closely interested in the Bill by debating it at this hour. I believe that that was never the Government's intention in the first instance. The Government Chief Whip has now entered the Chamber, so I give him the opportunity which I gave earlier to one of his colleagues because I know that he wishes to rise to suggest that we should now conclude the business for today.
Lord Strathclyde: My Lords, as the House knows, I have just entered the Chamber and heard my name being called. I think that the noble Lord is complaining that we are sitting rather late and is suggesting that we should stop. I believe that that is the broad thrust of what the noble Lord has been saying. I am happy that we should continue to finish Report stage, which is what we intended to do when we started this afternoon. Nothing has happened to change my opinion so, rather than discussing whether or not we should continue, I hope that we shall get on and complete the Bill tonight.
Lord Rodgers of Quarry Bank: My Lords, I was not complaining at all. I was saying that the Government Chief Whip should have regard to the high standing in which this Chamber is held and to the very widespread belief that if we discuss these important matters at this late hour, inevitably they will not receive the scrutiny they deserve and we shall not be performing our proper scrutiny under the constitution. I have no complaint. As I have said, our endurance is at least as great as that of Ministers. However, I believe that the Chief Whip should have some thought for the hard work which the noble Baroness the Minister has put in today and that he should assume that, despite all her denials, it is time to go home. If the noble Lord refuses to let us go home, then let us get on with the business, which is what I now propose to do.
At Second Reading, in reference to what was then Clause 100, I referred to the extent to which what is now Clause 102 was unacceptable. We strongly support Clauses 103 and 104 in so far as they provide for criminal record certificates and in so far as they protect young people and other vulnerable groups. Therefore, in Committee I sought to delete what is now Clause 102. Further amendments (which we shall now be discussing in the early hours of tomorrow) are designed to postpone the coming into operation of Clause 102 for good and sufficient reasons. This amendment is without prejudice to that view.
At Second Reading, I referred to the possibility of introducing such an amendment in order at least in part to ridicule the unfairness of this clause and to
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draw attention to the extent to which it distorts priorities. If we are to legislate in the way proposed in Clause 102—we know that in the private sector it will become the practice for employers to require prospective employees to have criminal conviction certificates—surely it is most important that that is the rule within a key public role.
I do not believe that any noble Lord denies that trust in Members of Parliament is something for which we must all ask. There is no better way of safeguarding trust in Members of Parliament than for it to become essential that they deposit criminal conviction certificates at the time of their nomination. If building and factory workers are required, as they will be, to produce such certificates, surely it is reasonable to ask any candidate to deposit such a certificate at the time of his nomination.
It was argued by the Minister, and referred to by other Members of your Lordships' House, that candidates for Parliament appear before selection conferences. That is not wholly true. If at the next election there are about 3,000 candidates, on past evidence at least 500 of them will not have been before selection conferences. Noble Lords know that the procedures to enable people to be nominated and stand for election are very liberal in this country, and rightly so. But they are so liberal that any individual who properly gets himself or herself nominated can stand for Parliament without a party label. In those circumstances, it is not possible to argue that a selection conference provides a natural obstacle that a candidate has to overcome. Therefore, it is for a selection conference to require the production of a criminal conviction certificate.
I believe I said in Committee that during a normal party hearing it would be ridiculous to expect someone at the back of the hall to pipe up and say, "Can we see the candidate's criminal conviction certificate?" That is not the way of the world or the way that we want it to be. My amendment does not refer to Members of Parliament. It would be improper to seek to legislate on their behalf. However, the amendment refers to parliamentary candidates. It is within the capacity of your Lordships' House as a second chamber in our parliamentary system to express a view on that matter without any possibility of a conflict with another place.
The case for the amendment is simple. There should not be one rule for a voter seeking a job and another for a candidate seeking election to Parliament. Although that is not what the Bill says, that is the purport of what will happen. A voter seeking a job will increasingly be required by his employer to show a clean criminal conviction certificate while a candidate who seeks election to Parliament has no such safeguard to demonstrate.
I do not believe that a failure to take account of this matter will win support for the institution of democracy. The appointment of the noble and learned Lord, Lord Nolan, and the well justified stories of sleaze in another place have brought Parliament into disrepute. The acceptance of this amendment by the

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Minister would be a very minor and otherwise non-controversial matter, but it might be a large step for the reputation of Parliament in the eyes of the public. I beg to move.
Baroness Blatch: My Lords, there is no requirement in this Bill, or in any other statute, for any particular person or member of any group to produce criminal record certificates. It simply makes provision for such certificates to be provided to individuals and other bodies in certain circumstances. Criminal conviction certificates would be issued only to individuals. If this amendment were accepted, any parliamentary candidate would be compelled to disclose his certificate to the returning officer. It would also be necessary to amend the Representation of the People Act 1983 in order to give returning officers the power to disqualify candidates who refused to lodge their criminal conviction certificates.
I cannot see why the noble Lord singles out candidates for election to the United Kingdom Parliament for this special treatment when there are equally valid reasons for requiring candidates for a whole range of other occupations or posts to be treated in the same way. I have in mind, particularly, candidates to the European Parliament or local councils, and a significant number of nominees for public bodies and committees, many of whom give their time voluntarily.
As I made clear in Committee, a selection committee, or indeed an individual elector, has a perfect right to request sight of a candidate's criminal conviction certificate if they so wish; but it should be up to the candidate himself to decide whether or not to disclose it. The committee or elector may, of course, infer what they wish from an unwillingness to disclose these details; that is a matter for them and for their prospective candidate. But at least the individual would be given the right to make the decision himself, like every other citizen in the land. I hope that the amendment will not be pressed.
Lord Rodgers of Quarry Bank: My Lords, I fully understand what the Minister said; namely, that there is no requirement in the Bill that people should show a criminal conviction certificate. But the message is very plain. That is why this clause was included in the Bill: employers will in future have a very convenient way of finding out whether their employees have or have not any spent convictions by asking them to produce a criminal conviction certificate. It will of course be issued on request; it will be issued on payment of a fee. However, I am sure experience will show that it becomes a routine requirement, although the legislation does not make it a requirement under statute.
Secondly, if it requires an amendment to the Representation of the People Act 1983, so be it. I am not aware that noble Lords are unwilling to legislate when there is a case for doing so because there may be consequential legislation required elsewhere. The noble Baroness has not said, nor could she say, that
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it would be improper for this House to legislate in that way. Noble Lords could choose to pass this amendment and the consequences could follow.
Thirdly, the Minister asked: why the UK Parliament? I was tempted to go much further. Originally I had it in mind to table an amendment of the kind that she proposes, although I am not sure that she proposes to table it herself, in order to add completeness to the proposal I presently have before the House.
The Minister is right in saying that all those elected to public office, whether to local councils or to the European Parliament, have a special trust. Were there time, and perhaps on another occasion or even at Third Reading, I might want to extend this provision to them. But I thought it wise to start somewhere. I thought it right to start at a point which is most attractive to Members of this House.
Whatever we believe about the European Parliament or about probity in local government, the fact is that we in this Chamber are part of Parliament itself. There are many, particularly in the party of the noble Baroness the Minister, who believe that the sovereignty of this Parliament is the essential part of our constitution. I believe that it has been compromised, and quite rightly, by our membership of the European Union. Yet it remains a fact that this Parliament of the United Kingdom is a source of the institutional democracy in which we all believe. And it is this Parliament of the United Kingdom that has been most under criticism for the sleaze which led to the appointment of the noble and learned Lord, Lord Nolan, and the adoption of new practices both by another place and by ourselves.
To argue that because we have provision in this amendment only for the UK Parliament and that somehow negatives its justification is a very narrow and rather mean way of looking at the amendment.
I said earlier that I thought we were proceeding beyond the point at which legislation could have proper scrutiny. I think it behoves me in those circumstances, as no other Members of this House feel prepared at this hour to participate, and it would be consistent with my view about proper scrutiny and not seeking to make progress with the Bill or to change it without other Members being able to take part in the discussion, to withdraw the amendment, which I now do.
The Deputy Speaker (Baroness Cox): My Lords, the Question is that the amendment be withdrawn.
Lord Strathclyde Lord Strathclyde: No!
On Question, amendment negatived.
[Amendment No. 129 not moved.]
Lord Rodgers of Quarry Bank Lord Rodgers of Quarry Bank moved Amendment No. 130:
Page 41, line 13, at end insert—
("(5) Any day appointed by an order made under section 121 below for the coming into force of this section shall not be earlier than two years after the coming into force of sections 103 to 113 below.

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(6) This section shall not come into force until the Secretary of State has laid before Parliament a report containing an evaluation of the effect of sections 103 to 113 below and his assessment of that evaluation.").
The noble Lord said: My Lords, if you felt that the previous amendment was less serious than some others before the House, and for that reason felt that it was not one on which you wished to intervene, I believe that this amendment gets to the heart of Part V of the Bill, in particular the provisions for criminal conviction certificates.
I referred to it briefly in moving the previous amendment. It is a development of what I moved in Committee. In Committee, I moved that Clause 102, as it now is, should not stand part of the Bill. There was significant cross-party support for that view, especially from the Labour Benches. The noble Lord, Lord McIntosh, felt unable to support it, but a number of his noble friends found that it had merit and would have preferred not to see the clause stand part of the Bill.
What I want to say tonight is, first, that Clause 102 is not central to the Bill nor to this part of it. Secondly, there is a clear distinction between Clause 102, which deals with criminal conviction certificates, and Clauses 103 and 104, which deal with vulnerable groups and which we strongly support. Thirdly, there is widespread anxiety about the consequences of Clause 102 as it stands.
In Committee, I drew attention in particular to the views of the National Association of Citizens Advice Bureaux, which is not a campaigning organisation in the normal course of affairs but has made very strong representations about Clause 102. I also drew attention to the views of the Penal Affairs Consortium. Indeed, it was felt on all sides of the Committee that the consequences of this clause for those who have at some stage been guilty of a criminal offence were the strongest case against it.
As the Minister said that, and as she will no doubt say again in respect of this clause, those with a spent conviction have no need to worry. However, in Committee I made clear that many of those who committed an offence 10 years or more ago and have had a clean record since will nevertheless find that conviction on a criminal conviction certificate. It will make it far more difficult to rehabilitate criminals if they find it impossible to obtain work.
Although, as the Minister said in our previous discussion, there will be no requirement to show a criminal conviction certificate, I repeat that for a very large variety of jobs employers will require prospective employees to show one. If they fail to do so and the prospective employee when employed commits an offence, they will be open to criticism. However, if they require a prospective employee to produce such a certificate and that certificate shows unspent convictions, it is very unlikely that they will seek to employ such a person because they will know what criticism would fall upon them if that person, once employed, were guilty of a breach of trust. Indeed, I greatly fear that once a criminal conviction certificate has been made available to an employer, if
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there is an occasion when suspicion falls on any member of the workforce, it will fall on the man or woman who has unspent convictions on his or her criminal conviction certificate.
Therefore, I believe, like noble Lords on all sides of the House, that there are very strong reasons against Clause 102 as it stands. The clause is an unnecessary intrusion into privacy and, as I say, would make much more difficult the rehabilitation of those prisoners who wish to go straight and who need jobs. Indeed, those with a criminal record may be tempted to perpetuate the course upon which they once embarked or an attempt to go straight may be reversed because of the problem of finding employment as a result of the certificates.
It would not be appropriate on Report and the procedures of your Lordships House do not allow me to press again the amendment which I tabled in Committee. Therefore, I have tabled an amendment which is a compromise. I hope that it may be acceptable to all parties in the House. The phased introduction of Clause 102 is put forward as a compromise which I hope will be reasonably considered.
It is common among all parties in your Lordships' House and on the Cross Benches that the most important clauses in this part of the Bill are Clauses 103 and 104 which provide for criminal record certificates and enhanced criminal record certificates. Therefore, the priority is that those clauses should pass through your Lordships' House and be embodied in the Bill. On these Benches it is our anxiety that that should happen as soon as possible. But if the priority is that Clauses 103 and 104 should be put first, there is no cost whatever involved in allowing Clause 102 to be introduced over a period of time.
Secondly, widespread concern was expressed in Committee on behalf of many organisations affected by the Bill as to the matter of cost. Indeed, the Government are gravely concerned about the cost implications of the passing of the amendment which stood in the name of the noble Lord, Lord Weatherill. If the provisions of the clause are not introduced except after a pause and reference to your Lordships' House, then that would be for the convenience of the Government as well as for the convenience of many organisations outside.
Thirdly, we are in new territory in Clauses 102 to 104. Sometimes, when we are in new territory, it is wise to walk warily and one step at a time. I am sure that we shall learn by experience how the rest of Part V works. When we have learnt by that experience, after the pause embodied in this amendment, it will be time, following report to Parliament, to go forward with the provisions of Clause 102.
Fourthly, and it follows from what I have just said, there are those of us—and I have expressed my view very plainly—who are deeply sceptical about this clause. We are very unhappy with it. But we may be wrong, just as the Minister may be wrong in believing that the clause is essential to the Bill. However, if we reach the compromise I mentioned we shall all learn

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from experience. Under the compromise, there will have to be a report to Parliament which will evaluate the effects of Clauses 103 and 104. That may very well persuade myself, my colleagues on these Benches and other noble Lords that Clause 102 needs to be implemented without delay. On the other hand, it may make the Government feel that there is reason to pause still further. Therefore, it provides this House with an opportunity to think again, although the clause itself would be embodied in the Bill.
I believe that my amendment is a painless solution to multiple problems facing the Government and the Opposition parties. As I say, the Government are worried about costs and where they will fall, as are the public. Perhaps I may say, with great respect and not wishing to be critical in any way at this juncture, the Labour Party does not wish to be misunderstood in its belief in zero tolerance. Therefore, it is anxious that Clauses 103 and 104 should go through. I wholly understand and support that view.
In such circumstances, the House could support my amendment—as I believe it would indeed do if we were debating the matter at a different hour—which, if carried, would strengthen the Bill. It would take nothing away which is essential to it and would strike a degree of harmony which, alas, has been absent for large parts of today. Surely it should be our meeting point in a piece of legislation which many of us support in so many of its respects. I beg to move.
Lord McIntosh of Haringey: The noble Lord, Lord Rodgers, is quite right to remind the House that we were unable to support his opposition to Clause 102 in Committee. He is also right to claim that what he now proposes is a compromise—a fall-back, if you like. It seems to us to be entirely sensible. In the end there will have to be some form of criminal conviction certificate, but we believe that the highest priority must be for the criminal record certificates and for the protection of vulnerable young people and, indeed—in the light of the amendments that we shall shortly be discussing—vulnerable adults. The delay proposed in the amendment is simply a recognition of reality. Such certificates and procedures will be expensive, although not as expensive as the Government claim, partly because of the amendment which was passed in Committee under the name of the noble Lord, Lord Weatherill.
If we delay the implementation of Clause 102 as is now proposed, then the preservation of Clause 103 and 104 within reasonable budgetary limits, including the amendments of the noble Lord, Lord Weatherill, is that much more likely. I believe that it is in the Government's interest to agree to this modest and sensible amendment.
Lord Thomas of Gresford: As my noble friend Lord Rodgers said a moment ago, we are entering into new territory in considering criminal record certificates. The first question that we have to consider is: what purpose are they supposed to serve? Clearly there is no intention that a member of the public
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should be able to approach an individual in the street and demand to see his certificate of criminal record, so there must be a purpose to it. That purpose is clearly in connection with applications for appointments and for jobs. When one reaches that point, one realises that there is a balance to be struck—where does the public interest lie in considering who should have access to criminal record certificates?
When one looks as Clauses 103 and 104 and considers that these certificates are to be used and shown for the purposes of jobs and appointments in a very vulnerable sector, one can see quite clearly that the public interest lies in showing such certificates to the employers who will employ people for the purposes of dealing with children, and so on. Such assurance should be given to them. However, when one enters into the whole field of work, employment and appointments, very different considerations then arise.
It is certainly right that information should be available to employers showing that a person has been convicted of dishonesty if he is applying for a job or an appointment which involves a position of trust. Equally, it is of importance that a person who has convictions for violence should disclose those convictions if he is concerned with an occupation which is in direct contact with the public. It is a matter for the employer when he considers the risk he takes in employing that person, the insurance implications and the possible effect of having such an employee upon the other people who work for him. These are short-term protections for the employer.
There is a public interest in preventing further offences altogether. The rehabilitation of an offender is simply another and better means of protecting the public. In the long term it is healthier for society that people who have convictions should not re-offend.
The problem that arises in relation to Clause 102 in considering the whole breadth of the employment field is that, in order to avoid re-offending, a person who has been convicted must be given the responsibilities of a job and must have his home and family. A person who has been convicted, has received training and rehabilitation in prison and is given all the support services when he comes out of prison may be faced with severe job discrimination because of the fact that he has convictions recorded on his certificate of criminal record. It may be that he may apply, in competition with other people, for a job which has no obvious connection, or no connection at all, with the type of offence for which he has been convicted. If, through job discrimination arising out of a certificate of criminal record, the past offender cannot obtain a job and remains unemployed, the cycle is not broken. He is likely, through necessity, to commit more crime; he is liable to go back to prison; and so his life continues in that downward spiral.
Clause 102 gives rise to the problem that we are attempting to go into new territory without any form of pilot scheme or experience as to how this type of

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certificate will work. Where the public interest is firmly in favour of the person seeking employment in a vulnerable field, surely that is the place for a start to be made. It is only in the light of experience over a number of years that we can truly evaluate whether the principles that lie behind Clauses 103 and 104 should, in the public interest, be extended to the whole range of employment.
Baroness Blatch: My Lords, I can assure noble Lords that the criminal conviction certificates are not as malign and intrusive as has been suggested. They will be issued only to the individual concerned and to no one else. They will contain details of unspent convictions only, in line with our commitment to the rehabilitation of offenders; and they will enable employers to confirm that the information that they have been given by an applicant is full and accurate.
It may well be the case that we will choose to phase in the introduction of criminal conviction certificates so that the fledgling agency is not flooded with applicants from the outset and is able, initially, to concentrate on issuing the more important and probably less numerous criminal record and enhanced criminal record certificates. However, their eventual introduction is an administrative matter concerned with workload and timing. It will be done when it is considered that the agency will be able to manage this extra work. The introduction of the certificates is not dependent upon the perceived success of other certificates, nor should it be. They are different types of checks which are being introduced for different purposes.
I would suggest that it is not necessary for the Secretary of State to lay before Parliament an evaluation of the initial success of criminal record and enhanced record certificates before any criminal conviction certificates can be issued. During the passage of this Bill the whole subject of criminal conviction certificates will have received full parliamentary scrutiny, and, if the measures become law, parliamentary approval as well. In these circumstances further scrutiny should not be required.
The evaluation that will really matter is the evaluation undertaken when a system is properly up and running to measure the impact on those people who will be subject to it. By delaying the introduction of criminal conviction certificates by at least two years, we would perhaps be unnecessarily delaying the implementation of a new criminal record system which will be coherent, cost effective, transparent and, above all, fair.
12.15 a.m.
Lord Rodgers of Quarry Bank: My Lords, I do not understand why there would be delay to the introduction of a new criminal records system if a decision were made simply not to issue certificates for a period of two years until there had been the possibility of evaluating the effect of Clauses 103 to 113. I must have misheard the Minister because I thought she implied that it was open to the Home Secretary to implement this clause when and how he
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chose within the statute. The Minister is nodding her head. Perhaps she will explain the position more fully as I did not catch everything she said. Is she saying that it lies within the capacity of the Home Secretary, with the Bill as drafted, to delay the coming into effect of this clause of the Bill?
Baroness Blatch: My Lords, it is open to us to make decisions about implementation dates for the commencement of parts of the Bill, but I made it clear that we could choose to phase the introduction of criminal conviction certificates. I also said that our considerations would be workload and timing.
Lord Rodgers of Quarry Bank: My Lords, I shall want to read that response carefully. It sounded to me a sympathetic response. The noble Lord, Lord McIntosh, said that the amendment was a recognition of reality. It may well be that what the Minister is saying is also a recognition of reality. She referred to the evaluation. The evaluation as provided for in this amendment would be the responsibility of the Secretary of State. He would have the final say in deciding what came before Parliament. I think that the Minister is moving in the direction of my amendment. Certainly I shall wish to scrutinise carefully what she said. I ask her only to think further on this matter. If it needs an amendment, it may be possible to return to it at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 131:
Page 41, line 13, at end insert—
("() The Secretary of State shall issue a criminal conviction certificate to an applicant within 7 days of the receipt of his application.").
The noble Lord said: My Lords, in moving Amendment No. 131 I wish to speak briefly to Amendments Nos. 137 and 172. These are self-evidently probing amendments. They set what I think would probably be impossible deadlines for the delivery of criminal conviction certificates, but they do so because of the concern that has been expressed in a number of quarters about whether the Phoenix database, which will be necessary for the establishment of the Criminal Records Agency, will be up and running. We moved different amendments with the same purpose at Committee stage making the Secretary of State responsible for the accuracy of the contents of the certificates. This time we are not concerned so much with the accuracy of the certificates but the timescale with which they will be supplied.
Despite what I said, it is not entirely stupid to require that certificates should be available within seven days; after all, it is always a question of urgency to apply for jobs when they are vacant. Any significant delay, in particular as regards criminal record certificates—I refer to Amendment No. 137— could be damaging. We are looking for an assurance that the Phoenix database system will be up and

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running and that it will be possible—I refer to Amendment No. 172—for information to be exchanged by electronic means between those concerned with criminal record certificates and the Criminal Records Agency. I beg to move.
Baroness Blatch: My Lords, I support what I believe is the intention of these amendments, which is to ensure that the Criminal Records Agency operates speedily and efficiently and that the information it passes on, in whatever form, is not misused. Given that in many cases criminal conviction and criminal record certificates will be applied for by those seeking employment, it is important that these applications are dealt with as quickly as possible.
This Government have done much to ensure that the service that government departments and agencies provide to the public is efficient, a principle that is enshrined in the Citizen's Charter. The Criminal Records Agency will, of course, be required to adhere to strict targets relating to its performance. In line with other agencies, these will be set out in its business plans and key performance indicators.
To lay down in statute what these time limits should be, as Amendments Nos. 131 and 137 do, is somewhat foolhardy given that we do not yet know exactly how big the agency will be, where it will be located, or exactly how many certificates it will be required to issue each year. Nor does it take account of situations when there may be justifiable delays in issuing a certificate. It is important to ensure that the information on the certificates is as accurate as possible and delays may occur, for example, if it proves necessary to go back to an applicant in order to ask him to provide further proof of identity.
These amendments do not specify what the sanction should be if the agency does not meet these time limits, but if it is intended that applicants should be entitled to compensation, even though they may not have suffered any loss or inconvenience, this would divert the agency's resources or lead to an increase in the cost of checks.
I would, however, like to assure the noble Lord, Lord McIntosh, that it should be possible to deal with applications for these checks, which will involve consulting only the Police National Computer and in some cases, the microfiche records held by the National Identification Service, and not local police records, very speedily indeed.
I also share the concern underlying Amendment No. 172. This amendment insists that all information about criminal records which is provided to registered bodies, whether transferred electronically or otherwise, should be covered by the code of practice. I am glad to say that it already is.
In addition, our proposal in this Bill to punish those who disclose information when they should not will apply to data passed electronically, and I can assure noble Lords that there are also substantial protections in the Data Protection Act about the electronic use and transfer of information.
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Changing the Bill in this way may be counterproductive, as, specifying that certain types of information exchange must be covered by the code of practice, might suggest that others which do not appear on the face of the Bill fall outside its scope.
I am minded that the noble Lord did, as a preface to this amendment, say that it was only a probing amendment. I am advised that Phoenix is already in operation.
Lord McIntosh of Haringey: I am delighted to hear it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 132:
After Clause 102, insert the following new clause—
PROHIBITION ON ENFORCED SUBJECT ACCESS BY EMPLOYERS
(".—(1) A person commits an offence if he requires an applicant for a paid position to supply him with information relating to any criminal convictions of the applicant (other than a criminal conviction certificate) supplied by a data user to the applicant as an individual exercising his entitlement under section 21 of the Data Protection Act 1984.
(2) A person who is guilty of an offence under subsection (1) above shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.").
The noble Lord said: My Lords, this is a serious matter, and it is one which I did raise in discussion of what is now Clause 102 at Committee stage. The problem with the introduction of Clause 102 is that it is not in substitution for provisions of the Data Protection Act, but in addition to them. That is against the wishes, as I understand it, of the Government, certainly against the wishes of the Data Protection Registrar and of the House of Commons Home Affairs Committee. The White Paper, On the Record, which is the basis for this part of the legislation, refers to the practice of enforced subject access, where prospective employers who require information about criminal convictions and who have an interest in establishing whether individuals have a criminal record, often require them to make an application for information under the Data Protection Act. This practice, known as enforced subject access, is unsatisfactory—this is dealt with in paragraph 7 of the White Paper—because it elicits both spent and unspent convictions, which clearly undermines the Rehabilitation of Offenders Act.
The noble Lord said:
Paragraph 44 of the White Paper says that the Government's proposals will provide employers and others with a legitimate means of discovering about individuals' current convictions.
There will, in the Government's view, be no justification for the practice of enforced subject access discussed at paragraph 7 when the new arrangements are in place; and the Government therefore propose to consider what action should be taken to discourage or prevent enforced subject access to criminal records once the new arrangements are in place.
That is not new. In his 1989 report, the Data Protection Registrar referred to the practice and said:
"I do not believe that this is a proper use of the Act. I recommend that it should be prohibited with a criminal sanction".
The Home Affairs Select Committee of the other place made a similar point in 1990.
The amendment gives effect to the wishes of the Government, the Data Protection Registrar and the House of Commons Home Affairs Select Committee. It

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provides that it should be an offence, and subsection (2) provides for a penalty. I commend it to the House, and I beg to move.
Baroness Blatch: My Lords, the increasing practice of enforced subject access, which this amendment seeks to outlaw, is undesirable and is contrary to the spirit of the Data Protection Act 1984. It also undermines the Rehabilitation of Offenders Act. If it did not cease as a result of the introduction of criminal conviction certificates provided for in this Bill it would undermine the measures we introduce to protect information about spent convictions in this Bill.
We very much hope that the new criminal conviction certificates will give employers a legitimate means by which they can obtain confirmation of an applicant's unspent convictions and reduce the practice of enforced subject access. But I share the noble Lord's concerns that this may not eliminate the problem. We will think further about this problem and try to find a way of amending this Bill in order to outlaw this practice.
I am advised that the matter is not straightforward, but I promise that we shall attempt to address it in this Bill. In the light of that undertaking, I hope that the amendment will not be pressed.
Lord McIntosh of Haringey: My Lords, I can hardly resist that plea. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 103 [Criminal record certificates]:
Baroness Blatch moved Amendment No. 133:
Page 41, line 17, leave out ("body") and insert ("person")
The noble Baroness said: My Lords, in speaking to Amendment No. 133, I should like to speak also to Amendments Nos. 134, 135, 136, 138, 142, 143, 144, 148, 149, 153, 159, 160, 161, 163, 164, 165, 166, 167 and 169.
These are the first of a number of Government amendments to Part V of the Bill. Before explaining their purpose I wish to make noble Lords aware that although we would have wished to bring forward all government amendments before the Bill left your Lordships' House, it is likely to be necessary to bring forward two further amendments when this Bill reaches the Commons. These are both issues which require further consideration in order to ensure that they can be properly addressed. The first will extend the provisions which the Bill contains to allow the Lord Chancellor access to checks for judicial appointments to other Ministers of the Crown. This will be necessary to cover Scotland but also judicial appointments which are the responsibility of other Ministers. However, there are certain other situations in which Ministers of the Crown might also require access to checks for which we would seek to make provision.
The second matter is a difficulty which has emerged in relation to regulatory bodies, in particular the financial regulators. There are circumstances in which, in order to fulfil their regulatory duties, it is necessary and is current practice for them to pass on criminal record information which has been provided to them. The Bill currently makes no provision for this. We need to consider ways in which it might be possible to amend the Bill so that its provisions do not stand in the way of necessary regulatory functions.
I now turn to the amendments. The purpose of these amendments is to permit office holders, such as the Director General of the Office of the National Lottery, to register for access to criminal record and enhanced criminal record certificates. As these office holders are not bodies corporate or incorporate, they would not be entitled to register unless the Bill is amended in this way. I beg to move.
On Question, amendment agreed to.
12.30 a.m.
Baroness Blatch Baroness Blatch moved Amendments Nos. 134 to 136 en bloc:
Page 41, line 19, leave out ("a registered charity or appropriate body") and insert ("the registered person").
Page 41, line 25, leave out ("body") and insert ("person").
Page 41, line 26, leave out ("body") and insert ("person").
On Question, amendments agreed to.
[Amendment No. 137 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 138:
Page 41, line 32, leave out ("body which") and insert ("person who").
On Question, amendment agreed to.
Lord Lester of Herne Hill Lord Lester of Herne Hill moved Amendment No. 139: Page 41, line 34, leave out ("and cautions").
The noble Lord said: My Lords, in speaking to Amendment No. 139, I would also like to speak to Amendments Nos. 141, 150 and 151. I apologise to the House for the fact that Amendment No. 140 makes no sense. It should not have been there. I have already informed the noble Baroness the Minister of that.
I make it clear that from these Benches we fully accept, as has been said by my noble friend, Lord Rodgers of Quarry Bank, the very important aims of Clauses 103 and 104.
The main purpose of these amendments is to ensure that only appropriate and necessary information about criminal records is given to potential employers, even in sensitive areas, for two reasons: first, to avoid frustrating important objectives of the criminal justice system; second, to avoid creating individual injustice and unfairness. Now that it is early morning, I am sorry to have to do this, but perhaps I may explain it more clearly to a House agog with interest in this matter.
Under Clauses 103 and 104 as they stand, details of cautions recorded in central police records and of spent convictions in cases of absolute and conditional

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discharges and of spent bind over orders, will all be disclosed in criminal record certificates and enhanced criminal record certificates. These certificates will be issued only in respect of sensitive occupations and offices, including health, pharmacy, the legal profession and senior managers in banking and financial services, to cite the Government's White Paper. It will cover a wide range of jobs in those sensitive areas.
I turn to Clause 103 to explain the position. As regards criminal record certificates under Clause 103 as it stands, the information which may be included in those certificates—for example, to employers in the legal profession, such as my own chambers—would include cautions. Clause 103 as it stands also covers absolute and conditional discharges and bind overs which would otherwise be spent under the Rehabilitation of Offenders Act.
These amendments seek to remove cautions from criminal record certificates, as well as to remove absolute and conditional discharges and bind overs spent after the appropriate rehabilitation period has expired. In the case of enhanced criminal record certificates under Clause 104, the amendments seek only to remove cautions from their ambit.
Perhaps I may briefly explain the position about cautions. The police have a wide and useful discretion to issue a formal caution. Guidance is contained in Home Office Circular 1994/18. Although records are kept of the administering of cautions, they are not a sentence and they do not rank as convictions. According to the Home Office national standards of cautioning, the purposes of a formal caution are threefold: to deal quickly and simply with less serious offenders, to divert them from unnecessary appearance in the criminal courts and to reduce the chances of their reoffending. A caution is not a form of sentence but it is a serious matter because it is recorded by the police and may influence them in deciding whether or not to prosecute someone who re-offends, and it may be cited in any subsequent court proceedings. Clause 103 as it stands would make a caution a very much more serious matter because it would become a part of someone's criminal record certificate to be passed on to potential employers and services in sensitive areas.
In the case of juveniles, there are strong policy reasons for delaying entry into the criminal justice system for as long as possible in the hope that the juvenile will grow out of his delinquent behaviour and never enter the system at all. That is why the Home Office circular refers to the presumption in favour of diverting juveniles from the courts. The Home Office rightly recognises that, as a general principle in the case of first-time juvenile offenders where the offence is not serious, it is unlikely that a prosecution will be a justifiable course. The choice will then lie between an informal word of warning and no further action; or, if the matter is too serious for that, a formal caution where the offence and the offender's record are not serious.
In the case of adults, there is no general presumption in favour of cautioning, but membership of certain vulnerable groups may point, according to the circular, to a sympathetic consideration of the case. The groups mentioned in the circular are the elderly or the infirm, young adults between 17 and 20 and those suffering from mental illness or impairment or suffering from severe physical illness. It is an essential requirement for a caution that the offender admits his or her guilt.
Let me say, after that rather long introduction, for which I apologise, that one concern about Clause 103 as it stands is that, by giving cautions wider circulation in criminal record certificates, it will become much more difficult to persuade minor juvenile and adult offenders, whether from vulnerable groups or otherwise, to admit their wrongdoing and accept the salutary warning given by a formal caution.
Another concern—I should be very grateful if these matters could be dealt with—is about the lack of effective procedural safeguards if cautions are to become a form of quasi-conviction whose disclosure to a potential employer may severely prejudice the individual's chances of obtaining employment. At present there must be evidence of the offender's guilt, the offender must admit his guilt, and the offender must understand the significance of a caution and give informed consent to the caution. But there is no obligation at present on the police to offer someone a right to legal representation before deciding whether to admit his guilt and accept a caution. It is clear from the Home Office circular that there are also concerns in the Home Office itself about the accuracy and consistency of the recording of cautions. I suggest that that is a further powerful reason for not permitting cautions to have wide currency as part of the individual's criminal record.
The existence of a procedure in Clause 106 for dealing with disputes about accuracy is useful so far as future recording and use are concerned. But that procedure will scarcely be effective in relation to stale and inconsistent records of, say, a 10 year-old minor shoplifting, road traffic or public order offence. It is also unfair that existing cautions will be given wide currency in sensitive areas—I stress this point because it seems a particularly unattractive position—even though they were administered at a time when those who admitted their guilt did so with no warning or expectation that such an admission of guilt would be permitted to be given wider currency and treated as relevant for employment purposes without any time limit or rehabilitation period.
If Clause 103 is agreed as it stands, it will in that way impose a retrospective penalty on those who admitted their guilt under the old system without a fair warning. I regard that as a particular vice and should be very grateful if that could be addressed.
I leave cautions to one side and turn to the absolute and conditional discharge. Where a court by which someone is convicted of an offence considers, having regard to the circumstances, including the nature of the offence and the character of the offender, that it is

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inexpedient to inflict punishment and that a probation order is not appropriate, the court may make an order discharging him absolutely; or if the court thinks fit, discharging him subject to a condition that he commits no offence during a period not exceeding three years from the date of the court's order.
An absolute discharge is appropriate where a person is convicted of an offence in circumstances where no moral blame attaches to him. An example is the case of the Queen against O'Toole in 1971 where an ambulance driver was driving an ambulance along a main road at about 50 to 60 miles an hour answering an emergency call. The vehicle's blue lights were flashing and the siren was sounding continuously. Another vehicle pulled across its path from a garage forecourt and a collision resulted. The Court of Appeal said it was very difficult to say there was any moral blame and substituted an absolute discharge for an order disqualifying the defendant from driving for 12 months.
A conditional discharge is appropriate in the case of an offender who might otherwise be suitable for probation but who is not in need of supervision by a probation officer, or where an offender who commits an offence which does not justify imposing a term of imprisonment has no resources with which to pay a fine.
Finally, there are bind-overs. Bind-overs can be part of a sentence following conviction for a minor offence, the rehabilitation period lasting until the date the bind-over ceases or one year whichever is longer. In addition, magistrates have the power to require a person who has not been charged with an offence to enter a recognisance to keep the peace or be of good behaviour. When that happens there is no necessary compliance with due process principles.
Liberty has drawn attention to a case where, for example, an elderly woman who had no legal representation was bound over for a potential breach of the peace as a result of a neighbour dispute. That type of bind-over information will be made available under an enhanced check. If the elderly lady were to volunteer at a local children's play group, that information would be highly prejudicial to her chances.
How are these matters dealt with under the Rehabilitation of Offenders Act? One has to follow that to see the impact of the Bill. That Act was designed to rehabilitate offenders who have not been reconvicted of any serious offence for periods of years and to penalise the unauthorised disclosure of their previous convictions. The 1974 Act provides for a rehabilitation period of six months from the date of conviction in the case of an order discharging a person absolutely for an offence and for a rehabilitation period of one year in respect of a conviction of someone who was conditionally discharged or placed on probation or bound over to keep the peace.
The practice direction on crime-spent convictions issued by the Court of Appeal in 1975 directs the courts to have regard to the spirit of the 1974 Act by refusing to allow any mention to be made of a spent conviction except where it is in the interests of justice to do so. Only a judge can authorise such a disclosure.
It is surely unjust and lacking any sense of proportion if absolute or conditional discharges and bind-overs which would otherwise be spent under the 1974 Act are now to be permitted to mar someone's prospects of obtaining particular employment without any time limit. I recognise that the situation is quite different in relation to enhanced criminal record certificates under Clause 104 dealing with paedophilia and matters of that kind. That is why my amendment would still permit even spent and minor sentences of that kind to be included and would remove only cautions for the reasons I have endeavoured to explain.
I apologise for the fact that I have taken so long to explain the matter but, if it serves no other purpose, it will at least enable noble Lords who are not familiar with this field to see the full picture as far as I understand it. I beg to move.
12.45 a.m.
Lord McIntosh of Haringey: My Lords, we had a most confusing debate on this subject in Committee, and I am still not convinced, even despite the lengthy introduction of the noble Lord, Lord Lester, that I am clear about all the issues to which the noble Lord referred. However, I want to support the part that I did understand about cautions.
As I understand the position, cautions are not covered by the Rehabilitation of Offenders Act 1974, and that is presumably because they are not considered important enough to be covered by the Act. If that is the case, since we have been worrying about a conflict between this Bill and the 1974 Act, surely the failsafe position would be that, if they are not important enough for that Act, they cannot really be important enough for this Bill.
There is also the worry that cautions can be accepted by people without any warning being given about the fact that they will appear on the record, most commonly by people who do not have legal representation. They accept a caution as a way of avoiding escalation of the confrontation with the police.
Another of my worries concerns the extent to which cautions are used for victimless crimes. I am talking in particular about consensual sexual acts which are offences that do not involve any victim. I would prefer in most ways to pursue the line which we pursued in Committee about the relevance of the information for which purpose the criminal record certificate is designed. However, failing that, it seems to me that some at least of the concerns expressed by the noble Lord, Lord Lester, have validity.
Baroness Blatch: My Lords, the effect of these amendments would be seriously to restrict the type of information that could be included on criminal record and enhanced criminal record certificates. I should remind the House that both of these certificates

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constitute the higher levels of check being proposed by the Bill and apply only to those occupations which are exceptions to the Rehabilitation of Offenders Act 1974.
Perhaps I may say in passing that the noble Lord referred to there being no victim in a consensual sexual act. I can think of occasions when there would be. Even in consensual sexual acts a very young boy might consent to sex with a much older person. I would regard the young boy as being very much a victim of that situation.
Lord McIntosh of Haringey: My Lords, the Minister will recognise that there is no such thing as consent by a young boy under the age of 16. That is an offence. It is not a consensual offence.
Baroness Blatch: My Lords, if they consented when they were over the age of consent it would not be an offence at all. We are talking about offences here. We are saying that if there was a young person who consented—there is nothing to stop a young person consenting—to sex with someone much older, that person could be cautioned. I am suggesting that there would be a victim in that situation.
For routine employment purposes, a criminal conviction certificate, which will only include details of unspent convictions, is perfectly sufficient. It is consistent with the spirit of the Rehabilitation of Offenders Act which allows for most convictions to become spent after a given period.
During our discussion in Committee noble Lords asked why absolute and conditional discharges can be included in criminal record and enhanced criminal record certificates. Both types of discharge are a disposal given by the court after a finding of guilt. As such they are covered by the provisions of the Rehabilitation of Offenders Act and, like the details of other convictions, should be included on these higher levels of certificate.
Amendment No. 139 would define "central records" as relating only to convictions. This would mean that details of cautions recorded centrally could not be included in criminal record or enhanced criminal record certificates. Amendments Nos. 140 and 141 deal specifically with criminal record certificates, and propose that they should only contain information on unspent convictions, including absolute and conditional discharges, bindovers and probation orders. It would not allow the certificates to contain information about spent convictions and cautions even though the groups who would be eligible for the certificates would only be those who are exceptions to the Rehabilitation of Offenders Act such as medical and legal professionals, public servants, and those who work with children and vulnerable adults; in all cases, professions where it is accepted that only the most trustworthy are appointed. Amendments Nos. 150 and 151 deal specifically with enhanced criminal record checks and propose that although they should contain details of spent, as well as unspent convictions, they should not include details of cautions. This is insufficient and
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will unnecessarily put at risk the most vulnerable. Only a very limited number of people will be eligible for enhanced criminal record checks. They will be restricted to those who work with children and will also be issued in connection with certain gaming and lottery licences. Following your Lordships' decision earlier this afternoon, it is our intention to extend the scope of these checks to cover those who work with vulnerable adults. In all cases it is necessary for an employer to be aware of an applicant's past convictions and cautions so that they can assess risk most accurately.
There may be some noble Lords who are persuaded that details of spent convictions should be contained on both of these types of certificate but not cautions. Spent convictions have all been tested by a court and may have been for relatively serious offences which could be relevant to the type of employment being sought. As the noble Lord, Lord Lester, explained during our consideration at Committee stage, cautions have not been tested by the courts and are not afforded the protection of the Rehabilitation of Offenders Act in the way that convictions are. I will address these points.
The cautions which are recorded on the police national computer are limited to those which have been given for reportable offences; that is to say, those which may attract a prison sentence. Because a formal police caution can only be issued if an individual admits committing an offence they cannot simply be regarded as insignificant matters in respect of those who apply for sensitive occupations. Although the Rehabilitation of Offenders Act does not apply to cautions, details of cautions will only be shown on criminal record and enhanced criminal record certificates, which would only be available for occupations and offices which are exceptions to that Act and which would also include details of spent convictions.
We are aware of the importance of providing safeguards in connection with information about spent convictions and cautions. The Rehabilitation of Offenders Act already provides some protection against the wrongful disclosure of information about spent convictions, and this Bill will also make provision for a new criminal offence if a member, officer, or employee of a registered body discloses information from a criminal record certificate other than in the course of his duties. This will apply equally to information on cautions and convictions.
As Minister with responsibility for the work of the Probation Service I assure the noble Lord, Lord Lester, that I attach great importance to the rehabilitation of ex-offenders, particularly if their offences were committed some years ago and are clearly no longer relevant to the type of work that is being sought. I am pleased to say the Government will publish a code of practice for registered bodies which will cover the way in which criminal record information should be handled. In addition we intend to publish guidance which will advise employers, for

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example, that they should take account of the time since the last offence, its relevance to the appointment in question and so on.
The noble Lord, Lord Lester, suggested that the inclusion of cautions makes them more serious, and referred to no obligation to legal representation, nor of recording them. Only reportable, broadly imprisonable offences, as I said, are recorded centrally, and cautions have only been recorded centrally since November 1995. On the point of no legal representation when the caution is administered, the person need not accept a caution and can do so having taken legal advice, or indeed without legal advice, if they so choose. In the light of that explanation, I hope that the noble Lord will not press his amendment.
Lord Lester of Herne Hill: My Lords, I am grateful to the Minister for that explanation although it has not really dealt with the main concerns that I articulated—probably because I spoke for too long and it may be that my concerns were not sufficiently brought out. Those concerns are fourfold. The first is that the effect of the measure as it stands will make it more difficult to persuade offenders to admit their wrongdoing and therefore accept the caution—a very undesirable consequence because I value the cautioning procedure. The second point is the lack of effective procedural safeguards that have obtained in the past, such as legal representation, when admissions of guilt have been obtained. My third concern is the lack of consistency and accuracy in the historic recording of cautions. I accept that that will be dealt with in the future but we are dealing with historic records. The fourth and final point is my concern about the retrospective penalty—that is, people are now to be treated as worse off than when they admitted their guilt for the purpose of the caution without having had fair warning that that would be the position.
All those concerns remain firmly with me and I am particularly concerned in the context of Clause 103 which deals with sensitive occupations, including my own. I cannot believe that the legal profession, or my chambers or those of the noble Lord, Lord Williams of Mostyn, would think it right that they should be provided with information about historic cautions because we belong to sensitive occupations within the White Paper. I do not know whether the noble Baroness or her colleagues have consulted members of the legal or health professions, but I very much hope that further thought will be given to these concerns because a great deal of what the Minister said showed sympathy with the need to ensure a proper system. There is no dispute between us about the importance of Clauses 103 and 104 as such. However, at this hour and with the matter being so complicated, I now beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 140 and 141 not moved.]
Clause 104 [Enhanced criminal record certificates]:
Baroness Blatch Baroness Blatch moved Amendments Nos. 142 to 144:
Page 42, line 2, leave out ("body") and insert ("person").
Page 42, line 4, leave out ("a registered charity or appropriate body") and insert ("the registered person").
Page 42, line 10, leave out ("body") and insert ("person").
The noble Baroness said: My Lords, these amendments were considered with Amendment No. 133. I beg to move.
On Question, amendments agreed to.
The Deputy Speaker: My Lords, I should point out that if Amendment No. 145 is agreed to, I cannot call Amendments Nos. 146 and 147 because of pre-emption.
Baroness Blatch Baroness Blatch moved Amendment No. 145:
Page 42, line 11, leave out from ("that") to end of line 22 and insert ("person—

(a) in the course of considering the applicant's suitability for a position (whether paid or unpaid) within subsection (2A) or (2B), or

(b) for a purpose relating to any of the matters listed in subsection (2C).

(2A) A position is within this subsection if it involves regularly caring for, training, supervising or being in sole charge of persons aged under 18.
(2B) A position is within this subsection if—

(a) it is of a kind specified in regulations made by the Secretary of State, and

(b) it involves regularly caring for, training, supervising or being in sole charge of persons aged 18 or over.

(2C) The matters referred to in subsection (2)(b) are—

(a) a certificate for the purposes of sections 19 or 27(1) or (5) of the Gaming Act 1968 (gaming);

(b) a certificate of consent for any purpose of Schedule 2 to that Act (licences);

(c) registration or certification in accordance with Schedule 1A, 2 or 2A to the Lotteries and Amusements Act 1976 (societies, schemes and lottery managers);

(d) a licence under section 5 or 6 of the National Lottery etc. Act 1993 (running or promoting lotteries).")

The noble Baroness said: My Lords, Amendment No. 145 is grouped with Amendments Nos. 177, 178 and 179 in my name and with Amendments Nos. 146, 147 and 152 in the name of my noble friend Lord Swinfen who communicated with me before he left the Chamber earlier this evening. The amendments are concerned with some of the groups eligible for enhanced criminal record checks when the measures in this Bill come into force.
First, part of amendment No. 145 deals with the gaming industry, and clarifies the sections in the Gaming Act 1968, the Lotteries and Amusements Act 1976 and the National Lotteries etc Act 1993 to which the provisions for enhanced criminal record checks will apply. This amendment also enables enhanced checks to be made where an application has been made by an individual who is applying for a licence, registration or certificate under these Acts, or who has been appointed as a director or employee of a body which already holds such a certificate. In effect, this means that not only will the existing directors and staff of a gaming body be eligible for enhanced checks at the time when a licence, registration or certificate

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is issued, but so will any others who take up post subsequently. This measure is supported by both the Gaming Board and the Office of the National Lottery and will help to clarify existing practice better to ensure that those who work in the gaming industry are fit to do so.
Secondly, the other part of Amendment No. 145 and Amendments Nos. 177, 178 and 179 enable the provisions for enhanced criminal record certificates to be extended by the Secretary of State by means of regulations. It is our intention to specify those who work with particularly vulnerable adults.
During our previous consideration of this issue I listened with great care to the forceful arguments put forward in particular by my noble friend Lord Swinfen and by the noble Lord, Lord Rix, who also communicated with me before he left the Chamber this evening. They have been doughty campaigners for vulnerable groups. In Committee I expressed much sympathy with the views of noble Lords who wished to see the scope of enhanced checks extended to cover vulnerable adults as well as children and undertook to come forward with an amendment which would seek to better protect those groups from those who abuse their positions of trust. The reason why this is being done by way of a statutory power rather than by stating on the face of the Bill which groups this measure will apply to is that we want to ensure that we get it right. I have sympathy with those charitable groups who work with vulnerable adults and the vulnerable generally who wish us to clarify which groups we specifically have in mind, but I am afraid that I am not yet in a position to do that. This is a complex matter. I assure noble Lords that we intend to consult widely with interested parties, including the charities involved, on the difficult question of which groups of vulnerable adults most need this extra protection. We believe that taking a power in this Bill to enable the provisions for enhanced checks to be extended is the right way forward. In the meantime, vulnerable groups will not be left exposed. As soon as the measures in the Bill come into force those who already work with vulnerable adults will be eligible for full criminal record checks which will include details of spent and unspent convictions and cautions, as will those who appoint, dismiss, manage or supervise such workers. I believe that this is a sensible measure which will allow us time to evaluate the effectiveness of enhanced criminal record checks before we widen their scope and assess carefully which groups of vulnerable adults most need this extra protection.
The noble Lord, Lord Rix, and my noble friend Lord Swinfen have told me that they accept the Government's amendments in this regard. Therefore, I apprehend that if my noble friend Lord Swinfen had been here he would not be pressing the amendments in his name on the Marshalled List.
1 a.m.
Lord McIntosh of Haringey: My Lord, we welcome the Government's recognition of the force of
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the arguments put forward at Committee stage. We need a good deal of faith in the Government's goodwill in this matter because the whole question of who are vulnerable adults is left to subsequent regulation. I have that faith, and I support the amendment.
On Question, amendment agreed to.
[Amendments Nos. 146 and 147 not moved.]
Baroness Blatch Baroness Blatch moved Amendments Nos. 148 and 149:
Page 42, leave out line 44 and insert ("person.").
Page 42, line 45, leave out ("body which") and insert ("person who").
On Question, amendments agreed to.
[Amendments Nos. 150 to 152 not moved.]
Clause 105 [Enhanced criminal record certificates: judicial appointments]:
Baroness Blatch Baroness Blatch moved Amendment No. 153:
Page 43, line 18. leave out ("body") and insert ("person").
On Question, amendment agreed to.
Lord Rodgers of Quarry Bank Lord Rodgers of Quarry Bank moved Amendment No. 154:
After Clause 105, insert the following new clause—
ENHANCED CRIMINAL RECORD CERTIFICATES: EXEMPTION FROM FEE
("An applicant for a certificate under sections 104 and 105 shall be exempt from paying the fee required by section 104(1)(b) and section 105(1)(b) if he is—

(a) a childminder registered under the Children Act 1989;

(b) seeking registration as a childminder under the Children Act 1989:

(c) a member of a household where registered childminding takes place for whom a police check is required under the Children Act 1989.").

The noble Lord said: My Lords, Amendment No. 154 is of rather different quality from that which we have just been discussing. I believe that its purpose is plain; namely, to exempt from the payment of fees for enhanced criminal record certificates those who are involved in child minding. At Committee stage on 2nd December when we discussed the amendment moved by the noble Lord, Lord Weatherill, for the waiving of fees in respect of charities, many noble Lords were concerned about whether the financial provisions of the Bill had been properly thought through. It is one thing for the Government to decide that the cost of these provisions should not fall on the exchequer but on individuals or organisations; it is another for those affected to find the money that is likely to be involved. Your Lordships took the view by a narrow majority that it was right to waive fees in respect of charities. My amendment seeks to put before the House the desirability of making exemptions in another field.
I can anticipate what the Minister will say about the cost of the Bill and of this amendment. I want to limit myself simply to saying that the organisations principally representing child minders are deeply concerned about the consequences of the Bill. I refer to the views of the National Childminding Association

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and the separate associations in Scotland and Northern Ireland. Together they represent over 100,000 child minders.
Those noble Lords who are close to these matters fully understand the very important role that registered child minders fulfil. Those who are responsible for them and anxious to represent them and to draw attention to their concerns take the following view of the provisions of the Bill as drafted.
First, the Bill will act as a disincentive to registration and increase the number of unregulated carers of young children, thus compromising their safety. Secondly, it will reduce the number of registered child minders, many of whom already find it difficult to make a living because of the high costs and expenses and low earnings, and therefore make good child care even more difficult to find. Thirdly, as a result of these factors it will threaten the good practice advances that have been made as a result of the Children Act 1989.
I do not want at this hour to discuss in detail the role of child minders or indeed how they are financed. I say only this to those who were not aware of it. Registered child minders in the United Kingdom are self-employed, independent child care providers. In that respect, detached as they are from the public service, they no doubt satisfy the wish of government to see more and more of our social provision out effectively to tender. They presently pay a fee of £10 to the local authority to register, and a further annual inspection fee of £7.50—although the Department of Health has just notified the association that these fees will increase by 25 per cent. from the beginning of next month.
The associations strongly believe that it is essential to have the checks provided for in this Bill. There is no argument at all about that. Indeed, as I have said before, there is no conflict of view in this House in respect of these clauses of the Bill. However, it is plain that if indeed some provision is not made to help child minders by avoiding the payment of these fees, then there is a threat to the whole profession as it has developed and to the safety of children in registered care.
I recognise that the Government will be very reluctant, and I know that the Minister will give no undertaking whatever this evening even to examine the amendment I am moving; however, I want to place it on record that I believe this is another respect in which, despite the long consultation period, which I fully recognise, the full consequences of the provisions in the Bill were not thought through. The fact that it has a number of virtues, particularly in Clauses 103 and 104, does not make it any less difficult for those whose job it will be to implement the provisions of the Bill.
I hope that the Minister will indicate her concern and sympathy for the child minders who are put in this position and indicate, if she will, how she believes they will get over the payment of a fee which, although it may seem small to noble Lords, can be
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large to those who are registered child minders and who are doing a first-rate job but who receive a very, very small reward for their efforts.
Baroness Blatch: My Lords, the Children Act 1989 does not require criminal record checks to be carried out on childminders. There is, however, a requirement for childminders, and other adults living on the same premises, to prove their fitness to be in the proximity of children. It has become the practice for local authorities to require applicants for registration as childminders, and other relevant adults, to undergo criminal record checks when they first apply for registration. At the moment, such checks are sought by local authorities and provided free of charge by the police.
Around 24,000 new childminders register each year in England (centralised figures are not held for the other parts of the UK) and would be eligible for checks. Records are not kept of how many other adults would be eligible for enhanced criminal record checks because they live in a household where registered childminding takes place. But it is reasonable to assume that this might be in the region of 24,000 to 48,000—that is one to two per household—which could be made up of the childminder's spouse or partner, and any children, relatives, or lodgers who are over 16 in England alone. The figure could, of course, be higher and it is those households which contain a higher than average number of adults which would be hardest hit by these proposals. I believe that the noble Lord used a figure of 100,000.
Currently, childminders also have to pay a small one-off fee to register and a further annual fee so that their premises, as well as the service they provide, can be inspected. These charges are being increased with effect from 1st February from £10 to £12.50 for the registration fee, which includes the first year's inspection, and from £7.50 to £10 for each subsequent inspection. These figures relate to childminders and sessional providers. The fees for providers of full day care are somewhat higher and will increase from £100 to £110 for registration and from £75 to £85 for annual inspections.
As your Lordships are aware, we propose to set up a criminal records agency to undertake the work necessary to implement the provisions in this part of the Bill. This will be viable only if it is self-financing. We intend that its costs would be met by charging each applicant for a certificate a modest and affordable fee. This issue was debated at length during Committee. As your Lordships know, the Bill as amended would now place a large extra burden of cost on either the Exchequer or those who are in paid employment in order to subsidise volunteers. I notice that that did not feature in the speech of the right honourable colleague of the noble Lord, Lord

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McIntosh, when he made his speech today, because the Labour Party has signed what amounts to a blank cheque on these matters.
In deciding on this course, the Government did, of course, look at whether certain groups should be exempted from paying for checks. But we did not consider that the relatively modest fees that are being proposed would be prohibitive to any of these groups. Childminders, and those adults who reside with them, would therefore be charged a fee in the region of £8 to £10 for the enhanced criminal record checks for which they would be eligible.
As noble Lords are aware, it would only be possible to offer certain groups free checks if an alternative means of funding could be provided. If the agency is to be self-financing, this would mean a substantial increase in the fees paid by other users of the agency, many of whom may be unemployed or on income support and who require a criminal convictions or criminal record certificate in order to find work, or employers or local authorities bearing the cost.
This measure would apply to new childminders of which around 24,000 register each year in England alone. Although records are not kept centrally, it is fair to estimate that in England each year there are around 24,000 to 48,000 adults who, because they live in the same household, would also be eligible for criminal record checks. If all these fees were to be waived the annual cost in England alone could be around £720,000. This is a significant sum. If the Government were to accept the principle that certain groups should have their fees waived I am sure that it would be possible to identify a considerable number of other groups, such as the unemployed or those otherwise on low incomes, who are equally, if not more, deserving of similar treatment. That is allied to the fact that any system of differential charges would be complex to administer and would add to the overall running costs of the agency and its financial viability.
The noble Lord would wish me to say this and I say it willingly: I assure the House that the Government fully recognise the important service which is provided by childminders. I agree that all care must be taken to ensure that those who look after or are in the proximity of young children are suitable and do not present a risk to the safety of those children. That is why we have consistently kept to a minimum fees which childminders pay for registration and inspection of premises. However, I cannot accept the principle that that group should be exempt from paying a modest fee for those checks to be carried out. In the light of what I have said, I hope that the noble Lord will not press the amendment.
1.15 a.m.
Lord Rodgers of Quarry Bank: My Lords, in her opening remarks the Minister said that the Children Act 1989 does not require checks. I hope that she did not imply—and her latter remarks suggest that she did not—that because the Children Act 1989 does not
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require checks, there is no need for checks to be made. It seems to me that that was an unfortunate way of expressing the matter because it suggests an area of discretion where discretion should not be exercised if it exists.
The Minister said that the fees are relatively modest. That seems to be so. But even relatively modest fees are a burden on those whose income from childminding is very limited; so I remain of the view that the full consequences of this Bill were not considered in advance.
The Minister referred to the agency being self-financing. I did not make that assumption, even though I might have been prepared to see some contribution to its total cost. I appreciate fully that legislation, including legislation of this kind, may need adjustments of one sort or another. But I hope very much, although I fear it will be the case, that there are no consequences for childminding of one kind or another. If there were fewer childminders of the quality required as a result of this Bill, it would be very unfortunate indeed. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 106 [Disputes about accuracy of certificates]:
[Amendments Nos. 155 and 156 not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment
No. 157:
After Clause 106, insert the following new clause—
CRIMINAL RECORDS TRIBUNAL
(".—(1) The Secretary of State shall establish a body to be known as the Criminal Records Tribunal ("the Tribunal") to hear an appeal from any individual applicant who disputes the accuracy or relevance of a new certificate which is issued to him under section 106 and which contains the same information as the original certificate.
(2) The Tribunal may examine any information held on theapplicant and that contained on the certificate and assess the accuracy of the certificate.
(3) A person who appeals to the Tribunal may be represented by a person of his choice.
(4) The Tribunal shall give reasons for its decisions.
(5) An appeal shall lie from a decision of the Tribunal to the High Court.
(6) The Tribunal may award compensation to an individual applicant.").
The noble Lord said: My Lords, I must move this amendment because it is very important. It encapsulates the concerns which we have about the provisions in this part of the Bill. It is not that we are opposed to the part of the Bill; far from it. We have been supportive throughout of the need for the protection of children and, I am glad to say now, vulnerable adults from people who might abuse or harm them. The principle of criminal record certificates is as dear to our hearts as it is to that of the Government. But at the same time, in the interests both of justice and economy, as well as the protection of vulnerable children and adults, there must be

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provision that the accuracy and relevance of certificates should be safeguarded.
Clause 106 provides for a new certificate to be sought by somebody who has a doubt about the accuracy or relevance of the certificate which has originally been produced. That is fine. We do not propose any change to that. But if, at the end of that procedure, a new certificate has been produced and it contains the same information as the original certificate—in other words, when the subject is still dissatisfied as to its accuracy or relevance—then we think that there should be a criminal records tribunal which should examine the information and assess the accuracy of the certificate.
In subsections (3), (4), (5) and (6), that matter should be subject to legal representation; the tribunal should give reasons for its decisions; there should be the possibility of a further appeal to the High Court, if necessary; and there should be compensation awarded in appropriate cases.
We are not even anticipating that Clause 106 will be used very frequently. But, obviously, to the extent that the information provided by the criminal records agency will come from a limited number of sources— for example, from the police national computer and, if I may put it that way, very official local records— there should not be major problems of accuracy or relevance of the certificates in any but a small number of cases. But when that happens and when, despite the provisions of Clause 106, there is still a dispute, then, in our view, the interests of justice require that there should be a tribunal of the sort suggested in the amendment. I beg to move.
Lord Thomas of Gresford: My Lords, we support the amendment. If one looks at Clause 106(2) as drafted one sees that the Secretary of State has an absolute right to issue a new certificate without any further check upon its accuracy. With the certificates that will be issued under the legislation—indeed, the large number of certificates that it will be necessary for people to have—it is difficult to believe that they will always be accurate. If they are not accurate, what happens?
The formation of a criminal records tribunal as proposed in the amendment would give a proper means of redress. Such a tribunal could receive information and evidence and assess the accuracy of a certificate. Most importantly, it could also hear representations that are made and, finally, where a person has suffered damage of any sort, it could award compensation. Those are the necessary concomitants to the issuing of such certificates.
Baroness Blatch: My Lords, it would be wholly wrong if, for instance, someone's prospects of
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securing employment were disadvantaged by inaccurate information appearing on a certificate. The need to ensure that that does not happen is already recognised in Clause 106. If an individual wishes to query the accuracy of the information on a certificate he will be able to do so. A thorough check will be carried out and the complainant and, where applicable, the registered body will be issued with a new certificate if any inaccuracies are discovered. I believe that this is a sufficient system of appeal. The accuracy of information in central records can be checked by means of fingerprints and chief constables will be responsible for the accuracy of local information.
A criminal records tribunal along the lines proposed by the noble Lord and supported by the noble Lord, Lord Thomas, would be unwieldy, bureaucratic and, I have to say, would add yet more costs to the Bill. Those costs would have to be borne either by those who were unsuccessful in their appeals, or, if that was not feasible, by all other users of the agency or, indeed, taxpayers. I am sure that our proposals are a sufficient guard against injustices. Individuals will see the certificate in every case and will have an opportunity to query the accuracy. I believe that that is a sufficient safeguard.
Lord McIntosh of Haringey: I am afraid that I find the Minister's response quite unconvincing. Clause 106 has very limited scope. It has very limited detail and does not set out the nature of the further inquiry which would be carried on. All the Minister is saying in response is that if, for example, there has been a mistake in transcription from the records, that would be corrected in the new certificate. What we are saying is that the possibility of serious injustice from wrong material being included on whatever source material is being used—there being no possibility whatever of challenge to that—is a danger not only to the liberty of the applicant but also, in the end, could result in jobs working with young or vulnerable adults not being filled because no suitable person was available. I do not find that argument satisfactory and I shall seek the opinion of the House on this amendment.
Lord Strathclyde: I suspect that the noble Lord will find that we do not have a House and are therefore unable to complete a Division; we may find that that is not the case. If we do not have a House, if the noble Lord continues to press his amendment, we shall have to return at another date in order to complete the Bill at a time that may not be convenient to him. Having said that, he may wish to reconsider whether or not he wishes to push this amendment to a vote.
Lord McIntosh of Haringey: I have three things to say about that. First, the Chief Whip cannot say that he has not been warned that we were dissatisfied with the timetable which has been imposed on this Report stage.

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Secondly, it would not be my intention to ask those who agree with me to abstain from voting in order not to achieve a House; that is not the purpose of my seeking the opinion of the House. My purpose is to make sure, and make it absolutely plain, that there is proper consideration of all parts of this Bill at a proper time. It is the Government's responsibility to provide a House for government legislation. I shall not seek to frustrate it by refraining from voting or asking my friends to refrain from voting.
The final point I want to make to the Government Chief Whip is that the normal procedure under these circumstances is for the remainder of the business—it is a very small amount—to take place at the beginning of the next business day. If that happened, I would have no objection and there would be no delay—and need be no delay—whatsoever to the passage of the Bill through this House.
1.29 a.m.
On Question, Whether Amendment No. 157 shall be agreed to?
Their Lordships divided:
1.34 am.
The Deputy Speaker: My Lords, as it appears that fewer than 30 Lords have voted, in accordance with Standing Order No. 55, I declare the Question not decided, and further proceedings on the Bill stand adjourned.
House adjourned at twenty-five minutes before two o'clock.