§ 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) 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 387 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 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 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 388 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 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 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 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.389
§ 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 moved Amendment No. 10:
Page 11, line 30, after ("Constabulary") insert ("or the National Crime Squad").
§ On Question, amendment agreed to.
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 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 390 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 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 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 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 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.391
§ Clause 82 [Appeals]:
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 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 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 392 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.393
§ 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.394
§ 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.395
§ 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 396 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 397 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 398 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 399 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 400 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 401 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 Callaghan of Cardiff
My Lords, I shall not give way to the noble Lord. If I give way I shall take 402 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 403 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 404 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 405 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 406 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.
407 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 408 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 409 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?
410 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.
411 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, 412 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 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 413 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 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 414 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 415 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 416 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 417 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. 418 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 419 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 420 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: 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 421 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.
422 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 423 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.
424 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: 425The 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 426 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.
427 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 428 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 429 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 430 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.
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.
431 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.
432 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: No, no, no.
§ Baroness Blatch: My Lords—
§ Lord Callaghan of Cardiff
My Lords, with respect to the noble Baroness, although I would not care to put 433 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 434 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 435 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.
436 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.
437 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: 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—
§ 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?
§ 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, 145.444
|Division No. 1|
|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.|
|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.|
|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.|
|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.|
|Harmsworth, L.||Redesdale, L.|
|Harris of Greenwich, L.||Rees-Mogg, L.|
|Harrowby, E.||Richard, L.|
|Haskel,L.||Ritchie of Dundee, 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.|
|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.|
|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.|
|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.|
|Addison, V.||HolmPatrick, L.|
|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.|
|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.]|
|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.|
|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.|
|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 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 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, 137.446
|Division No. 2|
|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.|
|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.|
|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.|
|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.|
|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.|
|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.|
|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.