Police Bill [H.L.]

HL Deb 20 January 1997 vol 577 cc458-542

Consideration of amendments on Report resumed on Clause 91.

Lord McIntosh of Haringey moved Amendment No. 27: Page 33, line 37, at end insert— ("() Where the action taken would involve an entry on or interference with property or with wireless telegraphy at—

1. (a) the place of business of a professional legal adviser; or
2. (b) another place in or at which communication subject to legal privilege is taking place between a professional legal adviser and his client,

the authorising officer and, if applicable, any other person who is required to approve action under this section must (in addition to the other requirements of this section) be satisfied that it is likely that an abuse of legal privilege will be occurring at the place which is the subject of the application, and, in this section, the term "subject to legal privilege" has the same meaning as that given to it in section 10 of the Police and Criminal Evidence Act 1984.").

The noble Lord said: My Lords, I rise to move Amendment No. 27 and there are probably some consequential amendments. I shall speak also to Amendments Nos. 28 and 40. These amendments are concerned with the extremely important issues of legal professional privilege and of privilege for other forms of communication which in the past have been protected by Section 10 of the Police and Criminal Evidence Act 1984. I refer to communications involving journalists, doctors, and comparable people.

This matter was mentioned on a number of occasions in the lengthy debate on Amendment No. 24. That was very worthwhile because it is evident that there is very considerable concern about the risk, in particular to legal professional privilege, of what the Government are proposing. I confess that I have not had time to do a textual analysis enabling me to say what will be the effect, if any, of the amendments which have been carried on legal professional privilege and on Section 8 of the Police and Criminal Evidence Act. I rather suspect that they will not affect it.

At the Committee Stage I moved amendments which gained some support around the Chamber but which I had to withdraw because they were defective in the sense that they would have prohibited communication between, for example, a lawyer and his client even if that communication had originated in the client's home rather than on the lawyer's premises. We had to think very carefully about how to achieve legal professional privilege.

The conclusion to which we came was that we should recognise the fear which Government Ministers expressed about the abuse of legal professional privilege. We discussed in Committee the whole issue of iniquity where one has, not to put too fine a point on it, a crooked lawyer who is seeking to break the law or evade the penalties of the law in the way that he communicates with his client. We thought that we ought to take account of that possibility in our amendments.

Amendment No. 27 relates to legal professional privilege and Amendment No. 28 to the others. We provide that the authorising officer or, having had great foresight, any other person, who is required to approve action under this clause—that, of course, now means one of the commissioners—has to be satisfied that it is likely that an abuse of legal privilege will be occurring at the place which is the subject of the application. We go on to define "subject to legal privilege".

I believe that the amendment meets the objections which the Government raised to the way in which we approached legal professional privilege in the past. I believe that it deals with the problem which was raised of abuse of legal professional privilege. It is an absolutely essential safeguard for the way in which law is conducted in this country. I recall that the noble Lord, Lord Thomas of Gresford, spoke movingly about his work in countries where, although they purport to conform to the British legal system, a lawyer cannot be sure when talking to his client that he is not being bugged and improper use is not being made of what he is saying. It is essential that we should keep that kind of banana republic law out of this country. I believe that these amendments do so. I beg to move.

8.30 p.m.

Lord Hacking

My Lords, in moving this amendment, the noble Lord, Lord McIntosh, said that he had not had time to assess the effect of the two amendments that your Lordships approved but that he rather suspected—I think I correctly quote his words— that legal privilege would not be affected.

I try to bring him some comfort in opposing his amendment by saying that there is a double protection now supplied. First, there is the commissioner. The intrusion into a lawyer's office is a matter which the commissioner, under the amendment successfully moved by the noble Lord's party, will take into account. I am not sure that both protections will remain in the Bill after it has been through your Lordships' House but certainly as it stands at the moment there is the second protection of the judge under the amendment successfully moved by the Liberal Party. Therefore I approach this amendment now with some care.

I do so because there are all manner of persons in privileged positions who receive confidential information from those to whom they speak. For example, there are doctors. We heard in the intervention earlier in the debate about the position of doctors. There are clinical psychologists. There are all manner of people working in social services, and there are priests.

As a lawyer, I am uncomfortable that the legal profession—which performs a very important function in society in looking after clients—should be singled out when there are so many others who receive confidential information in privileged circumstances.

Lord McIntosh of Haringey

My Lords, I am grateful to the noble Lord for giving way. I said that Amendment No. 28 covers the other examples that he has given. It embraces those communications covered by Section 10 of the Police and Criminal Evidence Act 1984. I did not spell out in detail what is covered, although I referred to doctor's surgeries and to journalists. Amendment No. 28, which is a comparable amendment to Amendment No. 27, specifically covers the other kinds of confidential communication to which the noble Lord referred.

Lord Hacking

My Lords, I apologise to the noble Lord. I may be at fault because I was not in the House when he rose to move the amendment. Perhaps I missed some of his earlier words. I should like to look at them in Hansard and consider the matter again.

My immediate response is still the same; namely, that the amendment singles out special protection for the consultation between the legal profession and members of the public. On that ground and that ground alone, I remain uncomfortable with it.

Lord Thomas of Gresford

My Lords, the noble Lord, Lord Hacking, will know that legal professional privilege is a very specific type of privilege in any event. It has to be contrasted with the confidentiality that exists between the doctor and patient, the psychotherapist and patient, the priest and penitent and so on. It is a relationship recognised by the courts and has, up to now, been recognised because it is thought that such a degree of privilege between client and lawyer is in the public interest. Why is it in the public interest? It is because it is essential that the client should have confidence in his legal adviser at the point where he faces criminal charges. That is a confidence which must be maintained.

At times, listening to the debates on the Police Bill, it has seemed to me that there has been far too much mention of crooked lawyers who conspire with their clients to defeat justice. That may perhaps be a popular press point of view but it is very far removed from the truth. As I said in Committee, it must be appreciated that lawyers are concerned to advise clients in the clients' best interests. That does not necessarily mean to get them off. If a person has committed a criminal offence, it may be, if it is a very serious criminal offence, that the aim of the lawyer is to get him a life sentence as opposed to a hospital order, or a hospital order as opposed to a life sentence, or three years instead of five years.

It is essential that the lawyer can talk to his client and obtain, if he can, the truth from his client. The successful lawyer is the lawyer who gains the trust and confidence of his client so that he will tell him the truth. With that truth, if it is the truth, the lawyer can achieve an aim. It may be to get a not guilty verdict, a period of years or a life sentence—whatever that aim may happen to be.

What is iniquitous in this Bill as it is framed on the question of legal professional privilege is that it interferes in the very delicate balance that exists in an adversarial system. For better or worse, the feature of the criminal justice system of this country—in which noble Lords have many times expressed confidence—is that it is an adversarial system whereby one side puts forward its case, the other side does the same, and an impartial judge and perhaps a jury or finder of fact stands between the two and comes to a conclusion.

What happens when bugging is permitted? I have been involved in bugging cases. What would happen with bugging of lawyers' offices is that one side would obtain inside information of what his adversary was doing—the discussions he was having with his clients, the advice that he was giving, and the aims or goals they were seeking to achieve. That is putting into the hands of one side, and obviously into the hands of the police and prosecution, a weapon which, under our adversarial system as it has grown up, that side should not have.

That is why we agree with the amendment now put forward to confine the possibility of bugging lawyers' offices or any place where a communication subject to legal privilege is taking place to a situation where it is likely that an abuse of legal privilege will be occurring. That does not happen very frequently. It does not mean that a lawyer is giving advice to his client in a proper manner or receiving his confidence in a proper manner. It means that a lawyer has stepped over the boundary and become a criminal himself. That is where the abuse of legal privilege will arise. It is only in that extreme situation and in very rare cases—in my own experience over 30 years I can think of only two or three cases where a lawyer became involved in the criminality of his clients—that the bugging of a lawyer's offices should be allowed. In any other situation, the confidence and trust of the client in his adviser must be maintained. That is the foundation and basis of our system.

Lord Browne-Wilkinson

My Lords, the House now has a moderate number of people to consider amendments which, if they had come alone and were not succeeding what we had earlier this evening, would each have been regarded as of the highest importance.

I have had a chance to analyse a little the inter-relationship between what happened earlier this evening and what we have before us now. These amendments remain of very great importance because whether you have an approving judge, an approving commissioner or an approving chief constable, he has to approve the action within the parameters laid down by the Act. I am a lawyer but I am not going to bang on any more about legal privilege.

Your Lordships earlier heard that the doctors are enormously concerned about their confidences. You may not have heard it in the House but you will have read it in the press indirectly that the press is concerned about the confidential sources that it enjoys. Nobody has mentioned it so far but there is also the matter of priests and confessions. All such confidential relationships are covered by these amendments.

The purpose behind this is not to prevent the police taking real evidence where a privilege is being abused; if you can show an abuse of a privilege, you can move. What is not right is that all these confidential relationships—lawyer and client, doctor and patient, and all the rest—should be exposed to bugging without proof of suspected abuse. Poor, miserable amendment No. 40, which has so far evaded consideration, actually deals with the giving in evidence of privileged material against the accused—something which to a lawyer would be a very remarkable thing.

I am speaking to go on the record more than anything else, in the hope that the Government will consider this position. When the Police and Criminal Evidence Act was passed in 1984, enormous care was taken to try to adjust the balance between privilege on the one hand and the interests of the administration and enforcement of justice on the other. Very careful safeguards were put in for all these confidential relationships. The purpose of these amendments is to ensure that those carefully worked-out safeguards are preserved and the information obtained not in documentary form, which is what we have had up until now, but in oral form, transcribed and recorded so as to be available in the way that previously documents had been available.

I am here in this empty House simply to stay for amendments which are regarded as residuary but which are very important. I cannot help feeling that, if the Government applied their mind to this again, they would see that, true as it is that there must be the power to bug people who are abusing their position of confidence— that, as I understand it, this preserves—what ought not happen is that these positions of confidence should be more available to modern systems of artificial surveillance than they have been previously under the 1984 Act.

I hope that this will not be regarded as a little bit of flibbertigibbet. We are talking about confidential relationships which have been valued in our society and in our law.

8.45 p.m.

Lord Hutchinson of Lullington

My Lords, once again the whole House owes a tremendous debt of gratitude to the noble and learned Lord, Lord Browne-Wilkinson, whom I was glad to hear emphasising the vital importance of the debate that we are having in this House which is so sparsely attended. Unlike him, I shall bang on for a moment or two about the matter of legal privilege. I want to be perfectly clear about what I am banging on about so that we all know where we start.

It is clear that the position of the Government is that it will not be unlawful under this Bill to secretly bug or break into barristers' chambers or lawyers' chambers or to bug police or prison cells when conferences are taking place with accused persons or with persons who are suspected of having committed offences. Secondly, there cannot be any exemptions to this. Thirdly—to get it out of the way—we are not dealing with iniquity; everybody agrees that if a lawyer is suspected of being involved in any form of criminal offence that is a totally different matter and is not what we are dealing with in this debate. Fourthly, in talking about legal privilege it is perfectly clear that this is not a privilege for the lawyer, that it brings no advantage to the lawyer, that it has nothing to do with a lawyer's privilege. It is the privilege of the citizen who goes to consult a lawyer. It is his privilege, it is not the lawyer's privilege. I hope that that is the basis on which we are discussing this matter. The Minister has said that the protection— although there can be no exemptions—will be the judge at trial. He will decide if the evidence has been obtained illegally or unfairly, and that is the ultimate protection. Lastly, the Minister says it is difficult to visualise it ever being necessary to allow authorisation of intrusion into a lawyer's chambers.

Let me spell out some of the circumstances in which intrusion is likely to be of substantial value in the detection of serious crime from the point of view of the police. In a conference with a barrister or solicitor the suspect, the member of the public, is very likely to mention his associates, very likely to mention his colleagues. From the police point of view, they would be his co-conspirators. He is very likely to mention where he banks his money. From the police point of view, that would be the proceeds of crime. He is likely to mention where his holiday home is. From the police point of view, that is where he will disappear to and get out of the jurisdiction. He is likely to mention whether he suspects that the police suspect him for some reason or another. That is enormously important from the police point of view. And, of course, he might mention what his defence would be if the police were to suggest that he had done anything unlawful.

If a chief constable is faced with one of his members of the force saying, "So and so is seeing his lawyer in the Temple on Tuesday. I think we will find that essential matters will be discussed during that conference"—and all those matters that I have mentioned would be essential matters—how could any chief constable say that that did not fall within the terms of the clause as being of substantial value in the detection of serious crime?

In those circumstances I would say a word about the constitutional position. When the noble Lord, Lord Hacking, says that the legal profession should be singled out, I can entirely part company with him because the legal position of privilege is entirely different from the privilege covering so many other positions between the citizen and, say, the priest or whoever else. It is a constitutional position. Without a written constitution, all that stands between the all powerful state on the one hand and the liberty of the individual on the other is an independent judiciary and an independent Bar, or, as it now will be, an independent group of advocates, ready to uphold the common law without fear or favour. The advocate is part of this constitutional complex. What many laymen do not appreciate is that a lawyer has an overriding duty to the court which is over and above his duty to his client. By that we mean that he has an overriding duty to the proper administration of justice.

It is not sycophancy which causes the advocate to call the judge "my Lord". It is not fear that causes the advocate to treat the judge with good manners and with respect, whatever the shortcomings of the judge's personal behaviour may be. The reason for this is that the judge represents the law and justice in the court. Legal privilege is the citizen's guarantee that he can, when he goes to see his lawyer, speak the whole truth to his adviser in perfect confidence and so receive advice which is honest and untrammelled in return. To allow state intrusion into this process, exercised in secrecy at the behest of one organ of the state—the police—for the benefit of the state, is to undermine a cornerstone of our democratic constitution.

The commissioner's position is nothing to the point because, as has arisen in the previous debate, if the whole process is secret and unknown, there cannot be a complaint to the commissioner and therefore the commissioner has no position. If it is not secret, and it is discovered and a complaint is made, then it is difficult to see, if the chief constable acts in good faith within Clause 91—if he honestly thinks that the intrusion is likely to be of substantial value—how the commissioner can possibly say that the chief constable's conduct has been in any way unlawful or improper.

Lord Browne-Wilkinson

My Lords, we may be at cross-purposes. If the government amendments requiring all authorisations to be submitted to the commissioner for consideration and review are passed, the point about secrecy is gone. The commissioner will be looking at each authorisation whether or not the person bugged complains or knows about it. The government amendment is a major shift which requires investigation of each authorisation.

Lord Hutchinson of Lullington

My Lords, I am most grateful to the noble and learned Lord because I had not myself gone into the exact effect of this afternoon's vote on this clause. However, my second point remains valid as to the approach the commissioner can take if the police officer has acted within the words of the statute.

Surely the overwhelming issue concerns the passing of a law that says that it is not illegal to bug a lawyer's chambers. That to me, as a lawyer, is so extraordinary, remarkable and unbelievable that I could not believe it when I saw it on the face of the Bill. To me the important matter here is that if there is such a law on the statute book it not only deprives the citizen of his privilege but it goes to the very basis of our constitution.

Lord Renton

My Lords, I did not hear the beginning of the debate and I had not intended to intervene. However, having heard what the noble Lord, Lord Hutchinson, has said, I feel obliged just to remind him that Amendment No. 27 refers to Section 10 of the Police and Criminal Evidence Act 1984. That is a statutory definition that we now have to accept of what was previously covered by the common law, but not so precisely.

The noble Lord's argument was based on what we all grew up to understand was the common law. However, Section 10 of the 1984 Act refers to, '"items subject to legal privilege' as meaning, communications between a professional legal adviser and his client". It then elaborates on those communications. It says: items enclosed with or referred to in such communications and made

1. (i) in connection with the giving of legal advice; or
2. (ii) in connection with or in contemplation of legal proceedings and for the purposes of such proceedings".

Subsection (2) of Section 10 goes on to say: Items held with the intention of furthering a criminal purpose are not items subject to legal privilege". One ought to bear that in mind in view of what the noble Lord was saying.

Baroness Blatch

My Lords, we accept that the Government should not be allowed to set out to listen in on, or otherwise interfere with, confidential conversations between a lawyer and his client on matters such as a client's defence with the intention of frustrating that defence. That would be wrong and, under the provisions of the Bill, would be unlawful. We could not introduce provisions exempting particular kinds of information or information held by certain categories of people without creating loopholes in the provisions which criminals would be sure to exploit.

We are dealing with highly professional criminals, and very successful ones, often with considerable resources at their disposal, who would be bound to exploit any exemptions or attempt to use them as a means of having evidence obtained from such surveillance ruled as inadmissible in court. I am sure that in practice the circumstances where the police or Customs would consider it necessary to intrude on the offices of lawyers would be extremely rare. The purpose of intrusive surveillance in these cases would not be to breach the confidentiality of a lawyer and his client but to collect intelligence on the commission or future commission of a serious crime where this information could not be obtained by other means. Authorisation for any other purpose or in any other circumstances would be unlawful.

In some circumstances, it would be impossible for the authorising officer to know beforehand whether or not there were likely to be matters normally subject to legal privilege on the premises. Before authorising interference with a lawyer's offices the authorising officer would need to think it necessary for the action to be taken because he suspected that serious criminal activity or conspiracy in serious criminal activity was taking place on the premises. There is already a specific exemption under Section 10 of the Police and Criminal Evidence Act for items held for furthering a criminal purpose.

Other material which properly fitted within the definition of legal privilege may not be given in evidence without the consent of the person enjoying the privilege save where this would help establish the innocence of the person accused. Therefore this amendment would not achieve anything which is not already covered in statute. In similar fashion, the purpose of the intrusive surveillance would not be to breach the confidentiality of the journalist and his source or the doctor and his patient but to collect intelligence on the commission or future commission of a serious crime. Again, authorisation for any other purpose would be unlawful.

An example of where intrusive surveillance might take place is if the police believed that a journalist was actively involved with an organised crime group or where a doctor was allowing his medical premises to be used for the production of synthetic drugs or drug trafficking. The amendments we have put forward will require authorising officers to notify the commissioners of all authorisations—and I was grateful for the intervention of the noble and learned Lord on this point—as soon as is reasonable practicable.

However, the commissioners will also be given a duty to scrutinise specified categories of authorisations within 48 hours of receipt. These categories, which will be set out in a separate order, will include matters usually subject to legal privilege: journalistic material and other medical records except in particular cases where it would be essential for the surveillance to take place immediately to catch a window of opportunity. This would effectively put the commissioner in a position to scrutinise the authorisation before the operation commenced and to quash it if he considered it improper.

One difficulty we have is that a number of authorisations are now being made where one would have to go to a circuit judge for an authorisation. There would also be need to go to a commissioner for an authorisation. However, the main arguments I am using in regard to the amendment hold true. Our proposals ensure that we do not create loopholes which would defeat the whole purpose of the legislation while at the same time ensuring close traditional oversight through the work of the commissioner. We believe this provides a sensible working approach which does not impede serious investigations but ensures the protection of lawyers and their clients and other confidential material from any unwarranted breach of confidentiality.

We are talking in this amendment not just about lawyers' premises. We are talking about wherever a lawyer may be: in a client's home, a club or another place. I do not know what mechanism can be used for knowing that an activity of intrusive surveillance would be unlawful in that circumstance or that legal privilege would apply in advance of actually knowing that it would be claimed that legal privilege applied because those involved happened to be in premises—a private house, a garage, outbuildings or wherever lawyers would meet someone to discuss information they regarded as confidential. We are not just talking about legal privilege here, as the noble Lord, Lord McIntosh, reminded us. We are talking about doctors and others who would need to discuss confidential matters. I hope the amendment will not be pressed.

Lord Browne-Wilkinson

My Lords, before the Minister sits down may I ask for a little elucidation? One of the difficulties is that one is talking about chasing villains. To chase a villain you put a bug in the office of the villain's solicitor. You put a bug in the office of the villain's doctor. You put it in the confessional for a member of the mafiosi. The bug, when there, not only collects information about the villain and his dealings; it collects information about every client, every other patient or every other person going into the confessional. What worries me and others is that this information is inevitably communicated. An amendment was put in at Committee stage to try and ensure that the material was destroyed or not used. I am afraid we were told that this was valuable material for criminal intelligence. I find it deeply worrying that the Government will not contemplate safeguarding information which they are accumulating about people who are not concerned in serious crime, will not destroy it and will not protect the privilege of the office in the case of the lawyer or the privilege of the doctor's consulting room. I am deeply concerned that the Government will not reconsider the position of wholly innocent third parties caught up in a bug. I do hope that at some time this matter will be addressed.

Baroness Blatch

My Lords, this is the Report stage and I must ask the leave of the House to address the point which the noble and learned Lord has made. It is important to come back to it because I believe he misunderstands the situation. The amendments ask for blanket legal privilege. I know that if there is a specific belief that lawyers are involved in criminal activity there is an exemption there, so far as the noble and learned Lord is concerned. But for purposes where a lawyer or a doctor is discussing confidential matters with a client, then legal privilege applies.

I have mentioned already today and I am happy to do so again for the record, that information gathered in the course of a bugging operation which was unrelated to the matter for which authorisation was given will be destroyed. That will be addressed in the code of practice. We will continue to press the point that unrelated information will be destroyed.

The noble and learned Lord rightly reminded us that we had a discussion concerning the destruction of evidence. One difficulty is that one needs to make a distinction between evidence which is unrelated for the purposes of the authorisation and evidence which is only intelligence gathering at this stage in pursuit of serious crime but which may have a relevance, not in the short or medium term, but may in fact need to be kept for a long time. So it is rather complex as regards the point at which it should be destroyed. I am happy to say to the noble and learned Lord that we are giving some thought to how we can address the destruction of evidence, and certainly the destruction of irrelevant evidence that can be deemed irrelevant at the time. We believe that there should be immediate destruction of that information. I take the point made by the noble and learned Lord and we will continue to seek ways and means of addressing it.

Lord McIntosh of Haringey

My Lords, those last remarks of the Minister are the only ray of hope in an extremely worrying answer. The noble Baroness started by saying that the Government recognise the principle of legal privilege, but then qualified that by saying, "On matters such as the nature of the defence". I have not heard that legal professional privilege is qualified in that way. The definition of "legal professional privilege" and of "excluded material" does not come from this amendment, but from the Police and Criminal Evidence Act 1984. The definition of "subject to legal privilege" comes in Section 10 and the definition of "excluded material" is found in Section 11. We have not sought in any way to extend or to depart from those definitions. They are already part of our law. There is no reason for the Government to suggest that this is a new departure.

I am afraid that matters only got worse as the Minister's arguments proceeded. The noble Baroness sought to complain that Amendment No. 27 covered not only lawyers' premises but also—she was quite right— another place in or at which communication subject to legal privilege is taking place". One can well imagine the way in which a zealous police officer might want to focus a directional mike on the steps of the Old Bailey, for example. That is technically possible and it is perfectly legal according to the provisions of the Bill. Since my Amendment No. 24 restricts the provisions to "premises", it is probably legal even after the passing of that amendment. Surely bugging surveillance should not set out to record communications which are subject to legal privilege or which are excluded communications under Section 11 of the 1984 Act.

Baroness Blatch

My Lords, I speak with the leave of the House and I am grateful to the noble Lord for giving way. Perhaps I may ask the noble Lord a question. If it was felt necessary for the purpose of pursuing the crime that the suspected villain's home was bugged, if the case was properly made out and all the provisions in the Bill were properly met and all the authorisations given, would that be subject to legal privilege if the client met the lawyer on his own home ground?

Lord McIntosh of Haringey

My Lords, of course it could be. I should not have given way to the Minister because I had not finished my argument. The amendments do not propose a total ban on such bugging communications; they propose that the authorising officer and, if necessary, the commissioner or the circuit judge (according to which amendment one takes) has to be satisfied that the communication is such that it is likely that an abuse of legal privilege will be occurring". That is a cautious phrase. We are not allowing this to be a matter for discussion between the authorising officer and the person giving the approval. We are not saying that it is an open and shut case and that under no circumstances will the communications not be subject to surveillance. We are saying that where it is anticipated that the information which is being obtained could be subject to legal professional privilege or could be excluded material, a case has to be made out—and the case that has to be made out is that legal privilege or confidentiality is being breached. That is a very modest position. It is not a difficult position to argue. Indeed, if it were not almost 9.15 p.m. I would certainly seek the opinion of the House, but that is pointless. The noble and learned Lord, Lord Browne-Wilkinson, has already referred to this being a sparse House—and it is. This is a matter of such fundamental importance that it deserves to be heard and debated by a full House at Third Reading, and on that basis, and on that basis alone—

Lord Hacking

My Lords, before the noble Lord sits down, he corrected me earlier when I spoke to the amendment and I must now tell him that I have been wholly persuaded by his arguments and those of the noble and learned Lord, Lord Browne-Wilkinson. In the circumstances, I hope that my noble friend will give the matter further consideration.

Lord McIntosh of Haringey

My Lords, I am grateful for that generous observation. I knew that if the noble Lord were to look at Amendment No. 28 he would see that we were covering the other kinds of confidential communication. The noble Lord strengthens the case for saying that the Government will have to listen again. The case is so comparable with that on which the House has already expressed its view today that I warn the Government that unless they modify their position on the matter, they will be defeated again next Tuesday. I beg leave to withdraw Amendment No. 27.

Amendment, by leave, withdrawn.

[Amendment No. 28 not moved.]

Lord Rodgers of Quarry Bank moved Amendment No. 29: Page 34, line 1, leave out ("officer") and insert ("circuit judge").

The noble Lord said: My Lords, this is a consequential amendment. I beg to move.

On Question, amendment agreed to.

9.15 p.m.

Lord McIntosh of Haringey moved Amendment No. 30: Page 34, line 2, leave out ("thinks") and insert ("reasonably believes").

The noble Lord said: My Lords, I beg to move Amendment No. 30. At the same time, I should like to speak also to Amendments Nos. 31 to 33. Although these amendments were debated in Committee, I come back to them without apology because the answers provided by Ministers on that occasion were totally unsatisfactory. These amendments, which replace "thinks" with "reasonably believes", "likely to be of substantial value in" with "necessary for", and "is satisfied" with "reasonably believes", and adds the phrase (which is in the code of conduct) "and that the action specified is proportionate to the aim sought to be achieved", have one purpose only. They seek to secure that the action of a policeman who seeks authorisation for intrusive surveillance shall not be justified simply on the basis of what he thinks but on an objective test.

It may or may not make a difference to the way in which the police officer makes out his application for authorisation to bug, but it makes an enormous difference to the way in which the commissioner subsequently considers whether or not it was justified. If the commissioner is entitled to say only that he thought it was likely to be of substantial value, rather than that he reasonably believed that it would be valuable or necessary, the commissioner has very little to go on in deciding whether or not it was a proper application. Unless there is an objective test there is nothing that the commissioner can do to decide whether or not the process of reasoning was in accordance with the law and with what most of us would recognise as being the occasions on which this unattractive and undesirable but inevitable process of bugging should be justified.

In responding to the amendments at an earlier stage, the noble and learned Lord the Lord Advocate, advanced a number of arguments about the meaning of different words. One definition of "think" in the dictionary is "believe", and obviously the converse is true. But he did not really address the issue of the necessity for an objective test not only at the time when the application is being prepared but, more importantly, when the commissioner is deciding whether or not the application was justified. I beg to move Amendment No. 30.

Lord Lester of Herne Hill

My Lords, with great brevity I should like to speak in support of the amendment. It seems to me that the Home Secretary ought logically to be in favour of the amendment. In his interesting essay in today's Times he writes: Surveillance may be authorised only if it is necessary to prevent serious crime, and may be used only against those engaged in such crime". That is a tougher test than is proposed in this amendment. If one takes the position of the Home Secretary literally, the powers are confined to a case of actual objective necessity. In my view, rightly the noble Lord, Lord McIntosh, does not go so far. He seeks to substitute for the purely rubbery and elastic subjective test "thinks it necessary" and "is satisfied" the language of objective satisfaction which is necessary if judicial review, or any ex post facto judicial accountability, is to take place. The problem is that, left as it is, one is left with rather loose principles of English administrative law and it will be difficult to have any effective review of words like "thinks it necessary". I believe that, in accordance with the rule of law, this prevents a completely subjective situation from arising. I think it right that the Bill should be strengthened in this way. It will also provide some help by way of standards for whatever form of judicial authorisation is to be introduced into the Bill before it leaves Parliament. I support the amendment.

Baroness Blatch

My Lords, to make a purely personal comment, I believe the police can be forgiven for believing that there is a sort of self-indulgence in the suggestion arising from this debate that they cannot be trusted to put a good case for an application for intrusive surveillance. Such an application has to be considered against very rigorous criteria. They have to believe it necessary for the action specified to be taken on the ground that it is likely to be of substantial value; and they have to be satisfied that what the action seeks to achieve cannot reasonably be achieved by other means. Chief constables have to be satisfied by that, and, under the terms of the amendments passed in this House, so do circuit judges and commissioners. I find the suspicion about how a policeman just might interpret the provision rather offensive. Having said that, the terms—

Lord Lester of Herne Hill

My Lords, I am grateful to the Minister for giving way. The last thing I seek in supporting this amendment is to impute bad motives or intentions, or even bad practice, to anybody. I should take precisely the same view if language of this kind appeared in relation to a Secretary of State of a government of whatever colour. The objection is not to the possibility of malpractice; it is simply that a public officer of the state exercising draconian powers ought to satisfy a test of objective satisfaction and not merely subjective satisfaction. That is not an unreasonable requirement. The principles of judicial review are quite generous in what they allow to the decision taker. There is no question here of suggesting that police habitually abuse their powers. It is simply a matter of proper control by the rule of law.

Baroness Blatch

My Lords, I repeat that it was a personal observation on what was said during the course of the debate earlier and during debate on this amendment. I do not withdraw my remark. The criteria and rigour of the code of practice that will have to be satisfied by anybody applying for such an activity are such that I do not take issue with the fact that a police officer applying for permission to use surveillance thinks the action necessary and that it is "likely to be of substantial value". Frankly, it is a test that I would entrust to the police.

The terms in the Bill are those that are used in the Interception of Communications Act and the Intelligence Services Act. We see no reason to change them. Furthermore, as I said, I am not persuaded that the phrase, likely to be of substantial value", should be replaced with "necessary for". There is already a "necessary for" test in the first part of the sub-paragraph. Any further repetition would be tautologous.

We must also remember that these are primarily intelligence gathering operations against our most elusive and difficult serious criminals who must be rejoicing today in what has happened in this House. On occasions it can be very difficult for an authorising officer to be sure that the action he authorises will ultimately lead to the prevention or detection of serious crime. We can, however, be satisfied that the action "is likely to be of substantial value" in the investigation process.

With regard to Amendment No. 33, we have made clear in the Bill that authorisation should be given only in cases involving serious crime and where what the action seeks to achieve cannot reasonably be achieved by other means. A code of practice, a draft of which noble Lords have seen, introduces a further element of proportionality. Authorising officers must satisfy themselves that the degree of intrusion into the privacy of those affected by surveillance is commensurate with the seriousness of the offence. I believe that the code and the need for consistency with other legislation concerning similar applications are sufficient to satisfy the concerns of your Lordships. I therefore hope that the amendment will not be pressed.

Lord Thomas of Gresford

My Lords, before the Minister sits down, she said a moment ago that serious criminals must be rejoicing in what has happened today. She talks about proportionality. Can she please be proportionate in a comment such as that, which is far beyond what I should expect to hear in this House? To say that serious criminals will rejoice because a judge or a commissioner has to authorise the bugging of private homes sounds completely out of proportion.

Lord McIntosh of Haringey

My Lords, I agree with the noble Lord, Lord Thomas. I believe that the Minister, in her personal comments as well as in what she said afterwards, was way over the top in her response to the amendments. I am afraid that the answer was as unsatisfactory as that given by the noble and learned Lord the Lord Advocate in Committee. At no stage in the phrases with which she criticised the semantics of the amendment was there any recognition of its most important element. The most important element is to provide an objective test which can be evaluated by a commissioner when the matter comes up for subsequent review.

The Minister, quite unnecessarily, said that the amendment was casting aspersions on the motivations or the intentions of police officers and that they would find it offensive. How can that be so? In respect of almost everything that any of us do in this life we are subject to criticism from our colleagues, opponents, bosses, subordinates, or whoever. One of the issues about which people are entitled to be concerned when they look at what we do in the world, in public life, in business or wherever is whether our intentions were honourable. That affects the way in which they make a judgment about the issue. In this case, the Bill is so drafted that the commissioner who is undertaking the review cannot look at whether the intentions of the policeman making the application were right. He cannot look at whether the policeman considered adequately what the alternatives were. He can look only at whether the policeman thinks that it is appropriate—

Baroness Blatch

My Lords, with the leave of the House, what does the noble Lord mean by "cannot look at"? In the course of considering whether authorisation should be given, the police officer requesting an application can be quizzed in all kinds of ways; for instance, "What makes you think you have good reason for this activity?". He will be quizzed on all of those things; on what it is that makes them think that it would add substantial value to their information.

Lord McIntosh of Haringey

My Lords, the Minister has exactly made my point. I shall try to quote her precisely. She said, "What is it that made you think you had good reason to act in this way?". The commissioner can say that only if the test is whether he reasonably believes, not whether he thinks. "What made you think that you had good reason?", is exactly what the amendment says and what the Bill does not say— exactly! I shall put this matter to the House for decision.

9.28 p.m.

On Question, Whether the said amendment (No. 30) shall be agreed to?

Their Lordships divided: Contents, 33; Not-Contents, 82.

Division No. 4
CONTENTS
Graham of Edmonton, L. [Teller.]	Monkswell, L.
	Rodgers of Quarry Bank, L.
Hilton of Eggardon, B.	Thomas of Gresford, L. [Teller.]
McIntosh of Haringey, L.	Williams of Mostyn, L.

NOT-CONTENTS
Blatch, R.	Ferrers, E.
	Mackay of Ardbrecknish, L.
Brougham and Vaux, L.	Mackay of Drumadoon, L.
Courtown, E. [Teller.]	Strathclyde, L. [Teller.]

Resolved in the negative, and amendment disagreed to accordingly.

9.35 p.m.

[Amendments Nos. 31 to 33 not moved.]

Lord Lester of Herne Hill moved Amendment No. 34: Page 34, line 11, leave out subsection (4) and insert— ("(4) Applications for decisions under subsection (2) may be made to a circuit judge by—

1. (a) a police officer of a rank not lower than that of Assistant Chief Constable of a police force maintained under section 2 of the Police Act 1996 (maintenance of police forces for areas in England and Wales except London);
2. (b) a police officer of a rank not lower than that of commander in the metropolitan police force;
3. (c) a police officer of a rank not lower than that of commander in the City of London police force;
4. (d) a police officer of a rank not lower than that of Assistant Chief Constable of a police force maintained under or by virtue of section 1 of the Police (Scotland) Act 1967 (maintenance of police forces for areas in Scotland);
5. (e) a police officer of a rank not lower than that of Deputy Chief Constable of the Royal Ulster constabulary;
6. (f) NCIS officers designated by the Director General of NCIS for this purpose;
7. (g) NCS officers designated by the Director General of NCS for this purpose;
8. (h) customs officers designated by the Commissioners of Customs and Excise for this purpose.").

The noble Lord said: My Lords, this is a consequential amendment. I beg to move.

On Question, amendment agreed to.

[Amendment No. 35 not moved.]

Lord McIntosh of Haringey moved Amendment No. 36: Page 34, line 23, at end insert ("criminal").

The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendment No. 37. Having been concerned with other definitions in Clause 91, we are now concerned with one of the most critical issues; namely, the question of what constitutes serious crime.

We tabled a different amendment in Committee which we do not propose to pursue this evening. However, noble Lords who have read newspaper reports, watched television programmes and listened to the radio in the weeks since the Committee stage will be aware that one of the most pressing concerns that has arisen relates to one particular aspect of the definition of "serious crime" which is used in the Bill. I refer to the provision in Clause 91 that it is a serious crime if, among other things, it is, conduct by a large number of persons in pursuit of a common purpose".

The other qualifications for "serious crime" are that it must involve the use of violence or result in "substantial financial gain". Of course, there is also the qualification, which is an alternative and not an addition, that the offence, or one of the offences, is an offence for which a person who has attained the age of 21 with no previous convictions, could reasonably be expected to be sentenced to imprisonment for a term of three years or more".

I believe that everyone will agree that the "use of violence" or the search for "substantial financial gain"— presumably, illegal financial gain; indeed, I do not believe that anyone has been heard to refer to the emoluments of directors of Morgan Grenfell asset management in this context—constitute serious crimes by any standards.

However, what can the words, conduct by a large number of persons in pursuit of a common purpose",

mean, other than that if it is to be serious crime then it must be criminal conduct and it must be in pursuit of an illegal purpose? Otherwise, anything that any one of us might do like, for example, joining a political party, going on a sponsored walk or—God forbid!—running in a marathon would be conduct by a large number of persons in pursuit of a common purpose. It cannot mean a legal common purpose; it cannot mean legal conduct. If the phrase "criminal conduct" is to make any sense at all, then it must mean an illegal purpose.

The distinction most commonly made is that relating to protesters about the Newbury bypass. I believe that it will be readily acknowledged that some forms of protest at some times in recent years have been for an illegal purpose. They could, for example, be deliberately planning a riot or a serious breach of the peace. However, most conduct of this kind, and in particular the conduct of most of the people who felt very strongly about the building of the Newbury bypass, is not illegal, is not criminal conduct, and is not in pursuit of a common purpose. Yet it is covered by the definition of serious crime used in this Bill and therefore becomes a justification for police intrusive surveillance.

Public comment on these issues has been fairly widespread. One of the things which I believe has concerned people more than almost anything else is the thought that, by inadequate definition, innocent people will be brought within the scope of intrusive surveillance. I know that I shall be told that the definition has been used in legislation before. I undertake, if this amendment is agreed to, to redraft the previous legislation and insert it, if necessary, as an amendment to this Bill at Third Reading. The fact that the definition has been used before has not been adequately drawn to the notice of the public. I believe that, if they knew about it, they would not accept that it was adequate as a definition of serious crime. I beg to move the amendment.

Lord Lester of Herne Hill

My Lords, my attitude towards this amendment depends very much upon the Minister's answers to the short speech of the noble Lord, Lord McIntosh. I am not a criminal lawyer and I am probably about to make an idiot of myself by what I say. However, I do not understand why the definition of serious crime goes wider than the definition of a criminal conspiracy or an attempted criminal conspiracy. I do not understand what conduct it is designed to catch which is not covered by common law conspiracy or attempted conspiracy.

Similarly, I do not understand the previous phrase, "results in substantial financial gain", as the qualification on what is meant by "serious crime". I should be grateful if the Minister could clarify, either now or in correspondence, whether I am right in thinking that those words are wide enough to cover, for example, the case of a newspaper suspected of committing serious crimes under the Official Secrets Act or the Contempt of Court Act with a whistle-blower or public interest defence but which is liable to make substantial financial gains as a result. Are those the kinds of matters which the Government have in mind in their definition of serious crime? If so, the position is even more serious than I had anticipated.

I should be very grateful for answers to those questions, either now or hereafter, as they very much affect my decision as to whether or not to support the amendment.

Lord Renton

My Lords, it seems to me that the amendments are unnecessary because the Bill is perfectly clear as it stands. Also, to add the words "criminal" at the end of line 23 and "illegal" at the end of line 24 introduces words of limitation which would narrow the effect of the clause.

9.45 p.m.

Lord Thomas of Gresford

My Lords, words of limitation are precisely what is required. That is the whole purpose of this amendment. Opposition to various clauses in this Bill has been described by the Minister as an attack upon the police or imputing motives to chief constables which are improper. The whole problem with this Bill is not so much what the chief constable or the police are likely to do; it is what they will do on instruction as an arm of the state, an arm of government. When one sees words as wide as, conduct by a large number of persons in pursuit of a common purpose one immediately thinks of demonstrations of one sort or another which are perfectly lawful. What this Bill should make clear is that the police will not be used as an arm of the state or of the executive for bugging discussions which may take place about the putting together of demonstrations of which a government would disapprove. Perhaps it is not just a matter of looking in the short term; it is a matter of looking in the long term at the effect of this sort of broad and ill-defined wording that is contained in this subsection. It is right that words of limitation should be included as this amendment suggests.

Lord Browne-Wilkinson

My Lords, I am afraid I am rather at a loss to know what the amendments achieve. As I think I made clear earlier, I have the strongest objection to this whole concept of, conduct by a large number of persons in pursuit of a common purpose whatever that may be, whether it be criminal conduct for a common illegal purpose. That can be 100 miles away from serious crime. The actions taken against the Newbury bypass may constitute criminal conduct of a minor kind, so may other small political gatherings involving a breach of the peace or obstructing the police. Yet, that is serious crime. Having said that, I cannot see that this amendment touches that point at all, if it is not clear even to a Law Lord that the conduct has to be a crime which satisfies these requirements, and unless it is a crime it does not come within the provision. My difficulty is that it covers a multitude of tiny matters which are not serious crime, but that is not touched by this amendment.

Baroness Blatch

My Lords, I shall read subsection (5) in this clause which simply states: For the purposes of subsection (3), conduct which constitutes one or more offences shall be regarded as serious crime if, and only if. The subsection then qualifies that statement. The definition of serious crime applied in the Bill has already been the subject of much discussion and will no doubt continue to be so.

I know there is concern among your Lordships about certain aspects of the definition. Certainly the noble and learned Lord has once again reminded us of his original concern on this point. We made our position clear at Committee stage. The definition of serious crime in Clause 91 was carefully chosen. It is the one used in the legislation relating to the issue of warrants under the Interception of Communications Act 1985. It has been in place for more than a decade and has worked well. Warrants issued under the Interception of Communications Act are subject to scrutiny by an independent commissioner. None of the three distinguished members of the judiciary who have held the office of Interception Commissioner—the noble and learned Lords, Lord Lloyd, Lord Nolan, and Lord Bingham—has ever found cause to complain about the definition.

I appreciate that concern has been expressed with regard to the position of anti-road protesters. Indeed these amendments could have been tabled with that particular point in mind. However, these techniques could not be deployed except against individuals whose conduct is criminal. Surveillance is an expensive and technical activity which is resource intensive. Its use will be authorised only in the most serious cases. It has been in use for many years and there is no evidence whatsoever that the police have used it inappropriately.

It would be odd if the police or customs were to find themselves subject to different definitions to the Security Service in applying for authorisation to interfere with property in cases relating to serious crime. There are obvious benefits of consistency and, combined with the knowledge that the definition has worked for many years in existing statute, I hope that your Lordships will agree that any amendment is unnecessary.

I recognise what the noble Lord, Lord McIntosh, said about wishing to return to primary legislation as regards other statutes to bring the wording of those statutes into line with the proposals contained within these amendments. However, this was not neglected as a subject in the course of discussing the Security Service Act. Therefore I do not see that we should have to bring those measures into line with these amendments unless there was a problem. As I have said, there is no problem.

In reply to the noble Lord, Lord Lester, I shall have to write to him when I have read more carefully the particular question he posed. I shall comment on one part of what he said, and that was where he referred to a breach of contempt of court, which I understand is not a criminal act.

Lord Lester of Herne Hill

My Lords, perhaps I can explain what really troubles me and then clarify my question. There are some crimes which are of a political flavour. There are offences against public order, there are offences concerning the administration of justice, Official Secrets Act crimes, Contempt of Court Act crimes and public order offences, and they are all of that character.

Would the noble Baroness the Minister first agree that one might want to adopt a different approach with ordinary policing and surveillance in such matters, as distinct from the kind of criteria for the Security Services in dealing with real national security issues? Secondly, I am seeking to discover whether this concerns the fears of the noble and learned Lord, Lord Browne-Wilkinson, that this can be a catch-all provision to cover a wide range of serious crimes in a theoretical sense, which can cover a whole range of matters of a political nature, like demonstrators and so on indulging in criminal trespass, let us say, and matters of that kind. The House is attempting to discover whether there are any limits on this very rubbery language. It may have been used before in a national security context or a telephone tapping context. Here the powers are draconian and a part of ordinary policing. That is the concern I am trying to convey.

Baroness Blatch

My Lords, a number of points occurred to me while the noble Lord was speaking.

First, some of those decisions are operational matters for the police to determine. Secondly, the authorisations will, of course, be controlled. They have to apply for authorisation, and the authorisation given has to be taken in the context of them complying with all the provisions that will be set out in the Act. The most practical down pressure on the police will, of course, be resources. I have heard nothing from the noble Lords opposite about pouring more resources into these activities. Certainly, as well funded as we believe the police are, we think that they would give some priority to the more serious crime because that is what they are pursuing. I simply do not see the idea that they should spend their time bugging and carrying out surveillance on road protesters involved in petty crime as a threat.

The best possible judgment that we can make at this stage is to look at the record of how the police have operated with precisely these words in other statutes. We can come to only one conclusion, that they have acted with great responsibility and restraint, and it is our view that they will continue to do that under the provisions of this Bill.

The accountability mechanisms in the Bill have been strengthened to require that all authorisations will be forwarded to the commissioner for scrutiny as soon as possible. The commissioner, I believe, would quickly quash any authorisations which he considered inappropriate. For purposes, again, of consistency with existing statute, and praying in aid the fine record of the police in exercising their activities consistent with the wording, I believe that the amendment should not be pressed.

Lord Browne-Wilkinson

My Lords, as I understand the burden of the answer given, it is not that the section does not authorise such gatherings or groups of people to be treated as being guilty of serious crime, but that our present police force, our present Home Office, our present political set up will not so treat it because resources are short. I am sorry, but I will leave the noble Minister alone shortly. I know I am being tiresome. Again I come back to the question that we are legislating not for this Home Secretary, not for these police— nobody is being rude about anybody—but what is being done is putting on the statute book a power which can be exercised by less scrupulous people.

As I see it, to treat as a serious crime a meeting of a number of people with whom they disagree who may be obstructing the highway or whatever they like, is constitutional change. What I hoped the Minister would say was that in her reading of it and in her advice, it would not cover such a case, but one never has that assurance. That is the crucial matter. I am sorry, but I promise that I shall stay quiet.

Baroness Blatch

My Lords, with the leave of the House, the noble and learned Lord has the habit of having the last word and asking me not to respond to it. I feel that I must. Such is the system that under any alternative—whether it is the amendments passed earlier or the proposals originally set out in the Bill—no one person can act in a machiavellian way. No one person can exercise their duties cavalierly. There are many checks and balances in the system.

An applicant for authorisation has to go to a chief constable. A chief constable must go to a commissioner. The commissioner has powers to quash. Under the other arrangements resulting from the amendments, other steps are in place. It will continue to be an operational matter. The police are bound by endless codes of practice, criminal evidence Acts, and the rigours of the systems set out in the Bill. They will always be subject to those requirements. The idea that we have responsible chief constables now but that we may not have them next year or some time in the future, with the transparent system we now have, is unthinkable.

Under any alternative within the Bill, the authorisations will continue to be controlled. Unless a great deal more money falls from Heaven, the financial constraints on the Bill will mean that they will continue to pursue serious crime and not play around with trivia.

Lord Williams of Mostyn

My Lords, perhaps I may ask the Minister one question. She said that the commissioner would quash an application where it is inappropriate. I wonder whether she could assist me by specifying upon what basis the commissioner might so quash because if one looks at the scheme Clause 91(3) provides: … where the authorising officer thinks it necessary for the action specified to be taken on the ground that it is likely to be of substantial value in the prevention or detection of serious crime". One then goes on to subsection (5): … conduct which constitutes one or more offences shall be regarded as serious crime …". That is not "may". Where does the discretion to quash where inappropriate come from? After all, does the Minister agree that if one had demonstrations of the type that one sees in the streets of Belgrade at the moment that would constitute a serious crime on these definitions?

Baroness Blatch

My Lords, it must be for the judgment of the commissioner or circuit judge. It would be for the commissioner or the circuit judge if they believe that the degree of activity upon which the police wish to intrude is such that the commissioner or circuit judge regards that not to be the best use of surveillance and that the police should be pursuing more serious crime. The commissioner must be bound by the definitions within the Bill. There is flexibility there. There has to be flexibility. When one is seeking intelligence and pursuing serious crime, it is always difficult to be specific at the outset. The case will be put to the commissioner or the circuit judge for them to make a judgment upon it.

Lord Williams of Mostyn

My Lords, I thank the Minister for that elucidation, which I take to mean that if the amendments which were passed by your Lordships earlier this evening, in whatever form, become part of the Act, the pre-authorising judicial officer will have a discretion based upon a proportional response to strike down the application. I take that to be the Government's position.

10 p.m.

Lord McIntosh of Haringey

My Lords, I do not think the Minister had better answer that because she has put herself into very deep water already, or my noble friend has done so. It really is not good enough for her to respond as she has been by talking as if the restriction on police financial resources is the proper constraint to the use of surveillance techniques.

We in this House today are concerned with the legal, statutory basis on which this intrusive surveillance is to be permitted. The Minister has more than once now returned to this claim that of course it will be all right, there will only be bugging in the cases of serious crime because there is not enough money despite, as the Government must say, the adequate funding of the police generally. There is not enough money for them to bug except in cases of genuine serious crime. Then, when my noble friend Lord Williams questions what she is saying, she says: "Well, the commissioner who is reviewing the decision afterwards will look at this case and consider whether within these limited resources this was the most important case for intrusive surveillance, or whether something which might have come up somewhere else could have been considered to be more important, and the consideration for that will be the proper use of resources." When my noble friend questioned her on that point she really was not able to answer it at all. I have never, in 14 years' experience in this House, heard such irrelevant or inadequate answers as we have been hearing on some of these amendments today. It really is deplorable.

I am going to withdraw this amendment, not because of anything the Minister has said but because of the remarks of the noble and learned Lord, Lord Browne-Wilkinson, who pointed out to me, I am afraid correctly, that, greatly objectionable as the wording in the Bill is, my amendment would not actually achieve anything. If the Minister will forgive me, I shall beg leave to withdraw the amendment.

Baroness Blatch

My Lords, I do insist, with the leave of the House, on asking the noble Lord this question: will the noble Lord not agree that Section 91(2) provides that, Where subsection (3) applies, an authorising officer may authorise"? In other words, the authorising officer has discretion as to whether or not to give authorisation—it would be the circuit judge in this case. Would the noble Lord not also agree that the final line of the first paragraph of his Amendment No. 24, provides that the authorisation will not take effect unless it has been approved by a commissioner appointed under Section 95, with, again, the commissioner having discretion as to whether or not to give such authorisation?

Lord McIntosh of Haringey

My Lords, of course I agree that there is discretion available to the commissioner. That is not the point that I was making. What the Minister was saying was that the commissioner is going to be able to exercise his discretion on the basis of which of the various options open to the police would constitute the best use of limited financial resources: that was the protection which she offered for the definition of serious crime. We are getting out of order.

Baroness Blatch

My Lords, if I may with the leave of the House, I have to put it on record that that is not in fact what I said. I did say in response to the noble Lord, Lord Thomas, that a downward pressure on the police—not to be trivial, not that it would be a discretion exercised by the commissioner—would be the need to use their resources wisely and effectively, so they would not play around doing unnecessary things; they would actually be pursuing the more serious crime. That was the downward pressure I was concerned about with regard to resources, not that the decisions of the judge or the commissioner would be made on those grounds.

Lord McIntosh of Haringey

My Lords, therefore if they had more resources they would do more bugging, would they? That is the only conclusion one can draw from what the Minister has said. It really is. The Minister confirmed that the commissioner can quash an authorisation if it is inappropriate, and she is now saying that one of the considerations that can be taken into account in deciding whether or not an authorisation is inappropriate is the proper use of resources. Hansard will bear one of us out. I am convinced it will be me. I beg leave to withdraw the amendment.

Amendment, by leave withdrawn.

[Amendment No. 37 not moved.]

Lord McIntosh of Haringey moved Amendment No. 38: Page 34, line 29, at end insert— ("() Any information or property obtained or retained in whatsoever form under the powers conferred by this section shall be treated for destruction purposes as if it were evidence obtained under the Interception of Communications Act 1985.").

The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendment No. 124. The amendment is concerned with the issue of the destruction of evidence and we refer to Section 64 of the Police and Criminal Evidence Act 1984. I return to this matter, which I raised at Committee, only because, even under the more liberal rules of debate which apply at Committee, the noble and learned Lord the Lord Advocate, in responding to my amendment, failed to address the most significant point about Section 64 of the Police and Criminal Evidence Act.

That most significant point is that he claimed—in my view wrongly—that the amendment would do harm to the structure of the Bill because there is no need for a particular offence to have been committed before an authorisation can be sought. Therefore, we could not apply the Section 64 procedure. I have looked again at Section 64 of the Police and Criminal Evidence Act. My understanding may be defective, although it has not been suggested to me that it is. The point about Section 64 is that it refers to destruction after a case has resulted in acquittal. Under those circumstances, surely it is proper that destruction should apply to the material obtained by intrusive surveillance on the same basis.

This is a very small amendment because Section 64 of the 1984 Act is very limited, but I want the record to be put straight. I beg to move.

Baroness Blatch

My Lords, the amendments deal with a very important issue, which is how the material obtained by intrusive surveillance should be treated.

It is obviously important that material obtained by such intrusive techniques should be treated with all due care and that there are proper safeguards to ensure that there are procedures in place governing the handling and eventual destruction of such material. However, I do not believe that either of these amendments is appropriate. Their combined effect would be to require the product of police and Customs intrusive surveillance operations to be treated in the same fashion as the product of interceptions authorised under the Interception of Communications Act 1985 (IOCA). IOCA imposes strict rules on keeping the number of people who can see such material to a minimum, on the disclosure of such material and on its destruction.

Superficially, such a regime may seem attractive for material obtained as a result of operations authorised under this Bill. However, there is a key difference. Section 9 of IOCA imposes an absolute bar on intercept product being adduced as evidence in criminal proceedings and, indeed, on any questions being asked about interception in such proceedings. It is therefore possible to destroy intercept product once the information has been assimilated into the general information picture or once an investigation has been completed.

By contrast, the product of police and Customs intrusive surveillance operations can, subject to the views of the court, be used as evidence. There have been a number of cases over the years in which the courts have been happy to admit such material as evidence and that will not change once this Act puts these operations on a proper statutory footing. This means that information obtained needs to be retained for much longer. Particularly where information has been obtained by intrusive surveillance as part of a long-term intelligence gathering operation, a prosecution may result long after the original intrusive surveillance operation. It is important that the material is still available at that stage, both so that the prosecution can use it as part of its case and also so that the prosecution can fulfil its disclosure obligations. Similarly, at that stage the material will be used for the purposes of prosecution rather than for the purposes of prevention and detection of serious crime. So the regime proposed in the new clause, which limits the disclosure and copying of the material to the minimum required for the prevention and detection of serious crime is inappropriate.

The absence of statutory rules governing the handling and destruction of this material does not mean that these issues will be treated in cavalier fashion. Given that chief officers will be involved in the authorisation of these intrusive surveillance operations, they will clearly have a personal interest in ensuring the proper handling of the results. I have no doubt that the chief commissioner will consider that the handling of the product will be one of the areas that he should look at as part of his general function to keep this whole area under review and he will no doubt report any concerns that he has about this to the Prime Minister.

Finally, it should not be forgotten that there is another good reason to ensure that the intrusive surveillance product is securely handled and seen only by the minimum number of people necessary. The more people who handle such material the greater the risk of the information getting back to the subject of the intrusive surveillance.

Although I am sympathetic to the intentions underlying the amendments, for the reasons that I have given I cannot support them. As I have demonstrated, the product of intrusive surveillance operations will be carefully handled. Therefore I hope that the noble Lord will not press the amendment.

Lord McIntosh of Haringey

My Lords, I understand the need for long term operations. The Minister has not answered the point as regards how limited Amendment No. 38 is. It refers only to information which is available after a case has resulted in acquittal.

I appreciate what the Minister said about Amendment No. 124. There have to be strict rules regarding the restriction of availability of this material, not only to avoid it getting back to the subject of the intrusive surveillance, but, as the noble Baroness said, more generally, in the interests of justice.

The Minister gave a complicated answer and I should like to consider it. In the meantime, I beg leave to withdraw Amendment No. 38.

Amendment, by leave, withdrawn.

Lord Rodgers of Quarry Bank moved Amendment No. 39: Page 34, line 30, leave out subsection (6).

The noble Lord said: My Lords, this is a consequential amendment. I beg to move.

On Question, amendment agreed to.

[Amendment No. 40 not moved.]

Lord Williams of Mostyn moved Amendment No. 41: Page 35, line 11, at end insert— ("() Nothing in this Act shall prejudice any power of a court to exclude evidence (whether by common law or otherwise) at its discretion.").

The noble Lord said: My Lords, I move this amendment which stands in the name of my noble friends Lord McIntosh of Haringey and Lady Hilton of Eggardon.

This important amendment seeks clarification that nothing in the Bill in its final form whatever that may be in due time, will have any limiting effect on the common law or, perhaps more likely now, on the statutory powers of a court at its own discretion to exclude evidence in criminal proceedings. The provision is as simple as that. I beg to move.

Baroness Blatch

My Lords, I shall be equally brief and, I hope, helpful. There is nothing in the Bill which excludes or disapplies the powers contained in Section 78 of the Police and Criminal Evidence Act 1984 or equivalent provisions. Therefore we believe that the amendment is unnecessary.

Lord Williams of Mostyn

My Lords, I am obliged to the Minister. As soon as the noble Lord, Lord McIntosh, departs from the Chamber, sweetness and light break out—I have the ability of course to alter that section of Hansard. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 93 [Authorisations: procedure and duration etc.]:

Baroness Blatch

My Lords, in principle we have no problem in agreeing to Amendment No. 42. In my notes it is the amendment of the noble Lord, Lord McIntosh of Haringey. Perhaps I may be given a moment to sort out my notes.

Baroness Hilton of Eggardon

My Lords, perhaps I may assist the House. We have amendments in parallel, to which Amendments Nos. 42 and 43 are alternatives. We are effectively pursuing the same ends except in relation to Amendment No. 49, where we suggest that there should be monthly reviews in addition to the three-monthly renewal period.

10.15 p.m.

Baroness Blatch

My Lords, I have no reference in my notes to this amendment. I do not know whether it is within the rules of the House to move to Amendment No. 50 while I sort out Amendment No. 42.

Baroness Hilton of Eggardon

My Lords, we are agreed about Amendments Nos. 42, 44, 46, 47 and 48. Only Amendment No. 49 is additional.

Baroness Blatch

My Lords, this is unforgivable on my part. We spent so much time on the earlier amendments that I have not concentrated enough on this group. I do not have any reference to these amendments in my notes. I wonder whether the House would give me five minutes to ensure that I get them. I beg to move that the House do adjourn during pleasure for five minutes.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 10.16 to 10.21 p.m.]

Baroness Blatch moved Amendment No. 42: Page 36, line 28, leave out from beginning to ("it") and insert ("72 hours beginning with the time when").

The noble Baroness said: My Lords, I offer my profuse apologies for the delay. I had here a group of amendments but no notes. This group of amendments reduces the authorisation times from 15 days to 72 hours for oral authorisations and from six months to three for other authorisations, which will not inhibit their operational effectiveness. I would have been arguing much more coherently had I been better prepared for this particular group of amendments and arguing that the Government's amendments are preferable. In the hope that the noble Baroness will accept them, I beg to move.

Baroness Hilton of Eggardon

My Lords, yes indeed we do accept the government Amendments Nos. 42, 44, 46, 47 and 48. The only point which I really would wish to argue in addition is that the authorisation should be reviewed on a regular monthly basis and not left for three months. We feel that in an issue as important as this, involving the surveillance of people's homes, at least a monthly review of the situation is appropriate and that it should not be left for even three months. Otherwise, we welcome the reductions in the time limits which the Government are suggesting. In fact our own suggested amendments are on all fours with those propsoed by the Government. I would not therefore intend to pursue our own alternative forms of words, which in some cases are actually defective, I think. We urge the Government to consider whether it would be appropriate for the authorisations to be reviewed on a monthly basis so that three months are not allowed to elapse between the initial authorisation and the next.

Baroness Blatch

My Lords, I am sorry to have to sound unhelpful. We believe that it must be for the commissioner to do what he believes is appropriate. We genuinely believe that there will be a pecking order of priorities for him to be more vigilant about, but it really must be a matter for him. We shall continue to evaluate the working of the Bill when it becomes an Act. The annual reports to Parliament will give us even more indication of how well it is working and of the degree of monitoring and review that will be necessary.

Baroness Hilton of Eggardon

My Lords, I recognise that the authorising officer will, effectively, now be the commissioner rather than a senior police officer, given that the earlier amendments have been passed. The noble and learned Lord the Lord Advocate, is shaking his head at me—

Baroness Blatch

My Lords, I believe that I started the muddle. As I understand it, the authorising officer will be a circuit judge.

Baroness Hilton of Eggardon

My Lords, that is my understanding, in which case I do not think that our amendment is appropriate any longer. That was the point that I was about to make. If the authorising officer had remained a senior police officer, there would have been no difficulty in reviewing the authorisation on a monthly basis because a great many police operations are reviewed on a monthly basis. My point was that a consequence of the amendments that we passed earlier is that the authorising officer will now be a circuit judge and monthly authorisations might therefore be considerably more difficult. In those circumstances, I beg leave to withdraw the amendment, but we shall consider the matter in the light of the amended—

Lord Williams of Mostyn

My Lords, before our amendment is withdrawn and in a spirit of helpfulness—

Baroness Trumpington

My Lords, I may be wrong, but I believe that the amendment being moved is Amendment No. 42. The other amendments are grouped with it, so the noble Baroness cannot withdraw any of her amendments yet. I believe that that is correct.

Lord Williams of Mostyn

My Lords, I am most obliged to the noble Baroness. A problem is now developing. Some of it is due to semaphore, which is useful because I believe that the noble and learned Lord the Lord Advocate to be right in his indication that the authorising officer still remains the senior police officer. The amendments which have been successfully moved—whether we are talking about the amendment in the name of my noble friend Lord McIntosh or that in the name of the noble Lord, Lord Rodgers—do not bite on the definition of "authorising officer". Amendment No. 24, which was moved by my noble friend Lord McIntosh still retains a descriptive categorisation of "authorising officer", but his application may not take effect until approval.

I am not pointing any finger at anyone, but one is now getting into a significant degree of muddle because of the nature of the amendments that have been passed. As I understand it—this view may be shared by the Lord Advocate—the authorising officer still remains the senior police officer. The "commissioner" has been inserted whether as a commissioner who has formerly held, or is presently holding, high judicial office or as a circuit judge, according to the amendment moved by the noble Lord, Lord Rodgers. It will be extremely difficult to continue discussing amendments of detail when the terms and terminology are being transposed so constantly. I merely raise that point although the noble Lord, Lord Lester, may well share that concern.

Lord Lester of Herne Hill

My Lords, I am finding it difficult—I am sure that the Minister will find it even more difficult—to consider the amendments properly when a major shift was made earlier by the acceptance by the House of the two main amendments. I respectfully suggest that one would have a better focused debate if the Government had the time to take stock of what other, wider consequential amendments are needed when deciding what to do in respect of those two earlier amendments. I cannot help thinking as we go through the amendments that this is a situation of "more haste, less speed". It might be desirable to find a way procedurally to return to these amendments at a later stage and perhaps to deal now with later clauses in the Bill which are not affected by them. I believe that that is commonsense and I hope that it is helpful.

10.30 p.m.

Baroness Blatch

My Lords, in principle I do not disagree with the suggestion that we return to this group of amendments once we have seen the Bill in its new form, except to say that, whether either of the amendments survives in this Bill in this form, the oversight and monitoring arrangements do not change. That is what we are talking about as far as concerns those amendments. I find it difficult to see how circuit judges can be second-guessed by the commissioner, but that is by the by. I believe that it is appropriate to withdraw any amendments associated with my name on the Marshalled List and return to them at the next stage of the Bill when the dust has settled on today's proceedings. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos.43 and 44 not moved.]

The Deputy Speaker (Lord McColl of Dulwich)

My Lords, if Amendment No. 45 is agreed to I cannot call Amendments Nos. 46 to 48.

[Amendments Nos. 45 to 49 not moved.]

Baroness Blatch moved Amendment No. 50: Page 36, line 43, at end insert— ("(5A) Where a person gives, renews or cancels an authorisation, he shall, as soon as is reasonably practicable, give notice in writing that he has done so to the Chief Commissioner appointed under section 95. (5B) A notice shall be treated as given to the Chief Commissioner under subsection (5A) if it is given, in accordance with arrangements made by the Chief Commissioner, to any Commissioner appointed under section 95. (5C) A notice under subsection (5A) shall specify such matters as the Secretary of State shall by order prescribe. (5D) An order under subsection (5C) shall be made by statutory instrument; but no order shall be made unless a draft has been laid before, and approved by resolution of, each House of Parliament.").

The noble Baroness said: My Lords, in speaking to Amendment No. 50, I should also like to speak to Amendments Nos. 58, 61, 62, 66, 68, 70 to 72, 79, 82, 83, 86, 88, 91, 94, 97, 100, 104, 108, 110, 115, 116 and 120. The Government have noted the concerns expressed in this House and elsewhere that scrutiny of the decisions taken by chief officers might only be carried out some months after the authorisation, when it would be too late for the commissioner to intervene effectively. This is another amendment which will be affected by the amendments debated today. We have decided to strengthen the powers and monitoring role of the commissioner. Because that strengthening is an important part of the process, I want to put on record the Government's views about these amendments.

The group of amendments relating to Clause 93 require authorising officers to notify the commissioners of all authorisations as soon as reasonably practicable. In many cases this will put the commissioners in a position to be able to scrutinise the authorisation before an operation has begun. They would be able to quash any which they did not consider to have been properly given and effectively prevent the police or customs from carrying out the intrusive surveillance. This accelerated review process will not erode the crucial principle that chief officers alone must be responsible for their decisions, and it will not prevent the police from making the most of a window of opportunity, if this arose immediately. The police and customs need this flexibility to be able to work effectively.

For the record, I believe it is important that that is set against amendments passed earlier today. There is only one amendment to Clause 93, and it is the first. Amendment No. 50 to Clause 93 will enable the Secretary of State to make an order, subject to affirmative resolution of each House of Parliament, prescribing the information that needs to be given to the commissioners in order to carry out the review process. These proposed changes will considerably increase the workload associated with the overview function. The amendments to Clauses 95 to 97 and Schedule 7 therefore replace the existing provision for the appointment of a commissioner and provide for the Prime Minister to appoint a chief commissioner and such number of other commissioners as is deemed fit and achieve the necessary technical changes to the remainder of the Bill to give this effect. I appreciate that similar amendments have been tabled by the noble Lord, Lord McIntosh, and that there is some common ground on the need for this provision. We referred to this amendment much earlier in the debate on the main amendments.

The requirement for more than one commissioner follows directly from the amendments which have been tabled to Clause 93 requiring that all authorisations are notified to a commissioner as soon as practicable after they have been given. This need is further increased by the duty imposed on the commissioner to scrutinise notifications of operations involving particularly sensitive property or material within 48 hours of receipt. The increased workload that entails means that it is no longer realistic to expect a single commissioner to oversee effectively the authorisation process. The appointment of more than one commissioner is clearly necessary to ensure availability and speedy scrutiny.

The amendments would provide for the appointment of a chief commissioner and such number of other commissioners as required. All of the commissioners will hold, or will have held, high judicial office and will undertake the same statutory functions and be equipped with the same powers.

I believe that there is some common ground on this issue. I believe that these amendments apply much more to the amendments passed by this House in the name of the noble Lord, Lord McIntosh, than they do to those passed in the name of the noble Lord, Lord Rodgers of Quarry Bank. I beg to move.

Lord Lester of Herne Hill

I thank the Minister for that very helpful summary. I should briefly like to explain why I think that this is another area that will be affected by the amendment of the noble Lord, Lord Rodgers, as well as by that of the noble Lord, Lord McIntosh.

In his very powerful speech the noble Lord, Lord Alexander of Weedon, referred to decisions of the American Supreme Court. One of those decisions was that electronic surveillance should be within the scope of prior judicial authorisation. I refer to a famous case, United States v. United States District Court. It is reported in Volume 407 of the US Reports, on page 297. The case was decided in 1971. I respectfully commend it to those advising the Government when considering what is to be done about this kind of matter. The passage I have in mind relates to the decision of the American Supreme Court that there must be prior judicial authorisation of electronic surveillance. It says in a unanimous opinion: A prior warrant establishes presumptive validity of the surveillance and will minimize the burden of justification in post-surveillance judicial review". In plain language that means that if the Government accept the Rodgers amendment or the McIntosh amendment—certainly the Rodgers amendment—one beneficial consequence will be that it will reduce the workload, expense and bureaucracy involved in what the Supreme Court termed "post-surveillance judicial review". In working out the balance between judicial authorisation and post-surveillance judicial review, the Minister and her colleagues may find the judgment and others quite helpful. It may be that they will come to appreciate the practical advantages for the police service and the Home Office as well as for the ordinary citizen in the requirements contained in both the amendments already carried by the House. That is why we should return to this matter when the Government have had a chance to take stock. I hope that this case will provide some useful guidance.

Baroness Hilton of Eggardon

My Lords, I agree with the noble Lord, Lord Lester. I think that, on the whole, with some probably detailed amendments, these would fit with the amendments passed earlier in that the appointment of a chief commissioner and a number of commissioners would also assist in the oversight of the whole system as proposed. However, it is difficult to address them in detail. Without examining the consequences of the previous amendments, it is not clear whether they will fit exactly. In the circumstances we welcome the broad thrust of the amendments.

Baroness Blatch

My Lords, first the amendment does not refer to the authorising officer. It relates to commissioner oversight responsibilities. Those responsibilities seem to be important, certainly in the context of one of the major amendments and the proposal set out in the Bill. Whatever happens, we take the view quite strongly that notification of every authorisation is an important strengthening safeguard and we wish to stand by that. For that reason I do not believe it would be harmful or prejudice any future discussions about which alternative was ultimately to be accepted so far as future tapping authorisation is concerned. I should like to strengthen the Bill in this way. The amendment offers an important safeguard. I commend it to the House.

On Question, amendment agreed to.

[Amendments Nos. 51 and 52 not moved.]

Clause 94 [Code of practice]:

Baroness Blatch moved Amendment No. 53:

Page 37, line 7, leave out ("may") and insert ("shall").

The noble Baroness said: My Lords, in moving Amendment No. 53, I shall speak also to Amendments Nos. 54 to 57. They achieve the effect of an amendment tabled in Committee by the noble Lord, Lord McIntosh. We have always intended to introduce a code of practice in connection with the provisions in Part III. The code of practice is a key document, forming an important component of the legislative package. The procedures for intrusive surveillance must be clearly set down for everybody to see. A government amendment in Committee to what is now Clause 121 ensured that these provisions could not be brought into force before the day on which the code of practice comes into operation. This implemented the recommendation of the Select Committee of the House of Lords on delegated powers and deregulation.

Although this, in effect, removes the discretion of the Secretary of State to issue a code of practice, it has left the remainder of Clause 94 defective. This group of amendments makes the necessary technical changes to the remainder of the clause. Taken together, these changes ensure that the Secretary of State must issue a code of practice and that it be brought into operation by means of statutory instruments. I beg to move.

Baroness Hilton of Eggardon

My Lords, we welcome the fact that the code of practice is to be made mandatory and that it is to be part of a statutory instrument. I am grateful to the Minister for bringing forward these amendments.

On Question, amendment agreed to.

Baroness Blatch moved Amendments Nos. 54 to 57: Page 37, line 9, leave out from beginning to ("a") and insert ("Before issuing"). Page 37, line 10, leave out ("he") and insert ("the Secretary of State"). Page 37. line 15, leave out subsection (4) and insert— ("(4) The code of practice laid before Parliament in draft under subsection (3) shall not be brought into operation except in accordance with an order made by the Secretary of State by statutory instrument."). Page 37, line 22, leave out ("force") and insert ("operation").

On Question, amendments agreed to.

Clause 95 [The Commissioner]:

Baroness Blatch moved Amendment No. 58: Page 38. line 4, leave out ("a Commissioner") and insert— ("(a) a Chief Commissioner, and (b) such number of other Commissioners as the Prime Minister thinks fit,").

On Question, amendment agreed to.

[Amendments Nos. 59 and 60 not moved.]

Baroness Blatch moved Amendments Nos. 61 and 62: Page 38, line 6, leave out first ("person") and insert ("persons"). Page 38, line 6, leave out from ("be") to ("held") in line 7 and insert ("persons who hold or have").

On Questions, amendments agreed to.

Baroness Hilton of Eggardon moved Amendment No. 63: Page 38, line 9, leave out first ("The") and insert ("Each").

On Question, amendment agreed to.

Baroness Hilton of Eggardon moved Amendment No. 64: Page 38, line 11, leave out second ("the") and insert ("each").

On Question, amendment agreed to.

Baroness Hilton of Eggardon moved Amendment No. 65: Page 38, line 13, leave out ("may") and insert ("shall").

On Question, amendment agreed to.

The Deputy Speaker: My Lords, if Amendment No. 66 is agreed to I cannot call Amendment No. 67:

Baroness Blatch moved Amendment No. 66: Page 38, line 13, after second ("the") insert ("Chief).

On Question, amendment agreed to.

[Amendment No. 67 not moved.]

Baroness Blatch moved Amendment No. 68: Page 38, line 14, leave out ("Commissioner") and insert ("Commissioners").

On Question, amendment agreed to.

10.45 p.m.

Baroness Hilton of Eggardon moved Amendment No. 69: Page 38, line 14, leave out ("Secretary of State thinks") and insert ("Commissioners think").

On Question, amendment agreed to.

Baroness Hilton of Eggardon moved Amendment No. 70: Page 38, line 15, leave out ("his") and insert ("their").

On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 71: Page 38, line 15, at end insert— ("() Anything authorised or required by or under this Part to be done by the Chief Commissioner may be done by any of the Commissioners who is authorised generally or specially in that behalf by the Chief Commissioner; and the references in section 96(4) and 97(4) to the Chief Commissioner shall be construed accordingly.").

On Question, amendment agreed to.

Clause 96 [Principal functions of Commissioner]:

Baroness Blatch moved Amendment No. 72: Page 38, line 16, after ("The") insert ("Chief).

On Question, amendment agreed to.

Baroness Hilton of Eggardon moved Amendment No. 73: Page 38, line 16, leave out ("Commissioner") and insert ("Commissioners").

On Question, amendment agreed to.

Baroness Hilton of Eggardon moved Amendment No. 74: Page 38, line 18, at end insert— ("(aa) review every authorisation given under sections 91 and 93, and").

The noble Baroness said: My Lords, I beg to move.

Baroness Blatch

My Lords, perhaps I may help the House. This is definitely not a consequential amendment. It is free standing within the block of amendments and we wish to oppose it. It has been spoken to, but it is a convention of the House that when a block of amendments is put to the House, those amendments which are consequential are accepted. We have honoured that decision throughout. However, there were a number of amendments within that block which were free standing and non-consequential. Therefore, we wish to oppose the amendment.

Baroness Hilton of Eggardon

My Lords, the Minister places me in some difficulty on this point. The amendments were spoken to en bloc at the earlier stage and we had no notification that some of them were seen as non-consequential. They seem to fall within the same principle. I should be grateful if the Minister will tell us which other amendments within the block the Government will be opposing. I was not aware that this situation was going to arise.

Baroness Blatch

My Lords, it is extremely unconventional to be asked which future amendments we shall be opposing but we shall oppose Amendments Nos. 77, 80 and 89.

Lord Lester of Herne Hill

My Lords, is this not an example of the kind of problem to which the noble Lord, Lord Williams of Mostyn, and I were drawing attention? This amendment seeks to give the commissioner an additional, specific power to review every authorisation under Sections 91 and 93. Whether or not that power is desirable is greatly influenced by what judicial authorisation procedure is agreed to eventually by the House. Again, I find it difficult to achieve the right balance until one has taken stock of the Bill as a whole. I wonder therefore whether it is sensible to be dealing with these matters at this stage.

Baroness Blatch

My Lords, it is a pity that the noble Lord, Lord McIntosh, is not in the House at the moment. When he spoke to this group of amendments, he indicated to the House that he was happy with the Government's version of these amendments. Government Amendment No. 76 would achieve more successfully the effect of his amendment. When I listened to the noble Lord, I understood that he was happy with that.

Baroness Hilton of Eggardon

My Lords, in that event, I shall not press the amendment and I beg leave to withdraw it.

Amendment, by leave, withdrawn.

[Amendment No. 75 not moved.]

Baroness Blatch moved Amendment No. 76: Page 38, line 22, at end insert— ("(1A) In discharging his duties under subsection (l)(a), the Chief Commissioner shall scrutinise any notice given to him under section 93(5A); and, in the case of such notices as the Secretary of State shall by order prescribe, he shall carry out that scrutiny within the period of 48 hours beginning with his receipt of the notice. (1B) An order under subsection (1A) shall be made by statutory instrument; but no order shall be made unless a draft has been laid before, and approved by resolution of, each House of Parliament. (1C) Where, at any time, the Chief Commissioner determines that the person who gave or renewed an authorisation under this Part was not acting properly in doing so, he may—

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

(1D) In making a determination under subsection (1C), the Chief Commissioner shall apply the principles applied by a court on an application for judicial review. (1E) Where the Chief Commissioner makes such a determination as is mentioned in subsection (1C), he shall make a report of his findings to the authorising officer who gave the authorisation or in whose absence it was given. Paragraph 5 of Schedule 7 shall apply to this subsection as it applies to that Schedule.").

The noble Baroness said: My Lords, Amendments Nos.76 and 101 to 103 introduce important additional safeguards to the provisions of the Bill. They place a duty on the commissioners to scrutinise all notifications sent to them by authorising officers and to ensure that authorisations in certain specified categories are scrutinised within 48 hours of receipt.

Those categories of authorisations subject to speedy scrutiny will be specified by a statutory instrument which will be approved by Parliament but should include those matters subject to legal privilege, journalistic material and medical records. That will ensure that operations involving particularly sensitive material will be seen quickly by the commissioners, and, in most cases, before an operation is even started. It also provides the commissioners with the power to quash authorisations where they do not consider they have been properly given and order the destruction of any material so obtained.

In scrutinising the authorisations, the commissioners will apply the principles of judicial review. We believe that an important distinction needs to be drawn between the roles of the authorising officer and the commissioners. The authorising officer is part of the investigation process and will be making an operational judgment based on his knowledge and expertise about policing methods. He will be considering whether there is any alternative way of carrying out the operation which does not involve intrusive surveillance and which should be tried first. The commissioners' role is to supervise the decision-making process to ensure that the criteria and provisions of the Bill have been properly applied. Again, under the amendment, the commissioner continues to have that role regarding whoever makes the decision.

The role of the commissioners is not to "second guess" the decisions of the operational officers. Their training is in the law and they should apply the same principles which are used in judicial reviews. These are that the decision is a reasonable one, that there has been no procedural impropriety in the way that the decision was reached or that there was a legal basis for the decision. The other amendments tie these new powers in with those already outlined in Schedule 7 or are semantic ones which do not effect changes to the powers of the Bill. I beg to move.

Lord Williams of Mostyn

Perhaps I may remind the House that we have reached a position which entirely indicates the concerns already expressed by the noble Lord, Lord Lester, and myself. We are now erecting quite a laborious superstructure on a basis the nature of which we are unaware. We are talking about a scheme which depends on a scheme put forward by the Government but which has now been overtaken by the two amendments that were carried earlier. Therefore, whichever of the two finds its way into the Bill, we are really dealing with a wholly irrelevant superstructure.

Baroness Blatch

To use colloquial language, we now have a "dog's breakfast" of a Bill. Members of the House voted for two amendments which conflict in many ways and which make it impossible for anyone of make any sense of the legislation. Therefore, to accuse me of simply trying to strengthen the way in which the commissioner and the oversight provisions work and of making a nonsense of the Bill is something which, frankly, I cannot accept. It seems to me that these are important amendments which we would like to put on the face of the Bill. We have as much right to do so as noble Lords opposite have to make an equal nonsense of the Bill.

Lord Lester of Herne Hill

The Minister may have misunderstood. No criticism whatever was intended of the noble Baroness or, indeed, of her colleagues. We have before us beneficial amendments proposed by the Government. For my part, they are most welcome. The only point is that part of the speech made by the Minister in their support was predicated upon the authorising officer not being a judge. That gave rise to some understandable misunderstanding. To get the balance right, I also believe that it is sensible to look at the post-review surveillance machinery in the light of the judicial authorisation.

If we have a "dog's breakfast" it is really no-one's fault; it is simply that the House expressed its view. However, perhaps it is someone's fault—indeed, many people's fault. The "dog's breakfast" needs to be made into a human breakfast and that, as I understand it, cannot be done this evening. As I said, no criticism of the Minister was intended in this connection. I believe that the proposed amendments are entirely beneficial, although they may have to be reviewed at a later stage in the light of certain earlier amendments.

Lord Williams of Mostyn

I entirely endorse what the noble Lord has said. No criticism was intended at all. Indeed, I hope that the tone I adopted was not a critical one. The Minister and I often agree; I entirely agree that this is a dog's breakfast. All I am suggesting to your Lordships is that giving the dog another bit of Bonio does not assist the proceedings of the House. It is not a criticism of the Minister at all; but, with great respect, I do not believe that having detailed amendments of this sort on an uncertain basis is a sensible way to proceed.

Baroness Blatch

My Lords, we withdrew some amendments earlier, partly because I started off rather badly in not being prepared for Amendment No. 42. However, so far as these amendments are concerned, it seems to me that we have a very schizophrenic House today. We have a House that has voted all ways and been facing all ways at the same time. I see no reason, given that these are strengthening measures, to say that they are as incongruous to this Bill as is the amendment of the noble Lord, Lord Rodgers of Quarry Bank, to that of the noble Lord, the Lord McIntosh. I should like to put them on the face of the Bill because I think it important that at least these safeguards can be taken into account in any discussions that will take place when this stage of the Bill is over. I beg to move.

On Question, amendment agreed to.

Baroness Hilton of Eggardon moved Amendment No. 77: Page 38, line 22, at end insert— ("() The powers of a Commissioner to investigate a complaint shall not prevent a person making a complaint under Part IX of the Police and Criminal Evidence Act 1984.").

The noble Baroness said: My Lords, this amendment was spoken to in the earlier group but I understand from the Minister that she is ungrouping it at this stage in the Bill. It relates to the rights of an innocent individual who has a bug planted inappropriately in his or her house or car and gives the right, which such a person currently has in respect of all other police action, to complain to the Police Complaints Authority. It seems appropriate in a situation where a person's rights and liberties as an individual have been violated that he or she should have appropriate recourse to the Police Complaints Authority. These matters should not be excluded but should be matters of supervision by the Police Complaints Authority. There should be openness about the use of these forms of surveillance, as in relation to all other aspects of police duty, as is appropriate within a democracy. I beg to move.

Baroness Blatch

My Lords, I gave notice that we would be looking at some of the free-standing amendments within that group and that we would choose to oppose some. This is one such, and I gave notice to the noble Baroness a moment ago.

There is nothing in the provisions of Part III of the Bill which would restrict or limit the present powers and functions of the Police Complaints Authority and therefore I do not believe that the amendment is necessary. The commissioner will be concerned with the operational decisions of authorising officers; the Police Complaints Authority, on the other hand, will remain responsible—as it is now—for the investigation of complaints regarding the conduct and behaviour of officers.

I return to a point made at Committee. If, in the course of his investigation of a complaint, the commissioner finds that intrusive surveillance has been carried out with the authorisation of an authorising officer or that, for example, unnecessary force or damage has been caused, it would remain a matter for the chief constable to investigate under the normal complaints procedure, involving the Police Complaints Authority as necessary. With the complainant's consent, there is nothing to stop the commissioner referring such matters to the chief constable for the appropriate investigation.

In the light of those comments, particularly because there is nothing in this Bill which would restrict or limit the present powers and functions of the Police Complaints Authority, I hope that the amendment will not be pressed.

Baroness Hilton of Eggardon

My Lords, I am grateful for that assurance. It is extremely important that all citizens should have recourse to the Police Complaints Authority as appropriate. We were particularly concerned—because it was clear at one stage that the commissioners would be operating very much behind the scenes, not being required to give reasons for their decisions, and so on—that other ways of complaint or objection to what had happened should be open to the public. In the circumstances, I will withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 78 not moved.]

11 p.m.

Baroness Blatch moved Amendment No. 79: Page 38, line 25, after ("The") insert ("Chief).

The noble Baroness said: My Lords, I have already spoken to this amendment with Amendment No. 50. I beg to move.

On Question, amendment agreed to.

The Deputy Speaker

My Lords, if Amendment No. 80 is agreed to, I cannot call Amendments Nos. 81 and 82.

Lord Williams of Mostyn moved Amendment No. 80: Page 38, line 30, leave out subsection (4).

The noble Lord said: My Lords, Clause 96(4) states: The decisions of the Commissioner under this Part (including decisions as to his jurisdiction) shall not be subject to appeal or liable to be questioned in any court".

The question I raise is the following. Assuming that a chief officer of police makes what he is convinced is a necessary application, and is absolutely certain that it is in the overall public interest that the application should be granted, and assuming his application is not granted, should there not be the opportunity for a chief constable, in what I readily accept would be rare and exceptional circumstances, to appeal? That is certainly something that the Government might wish to think about. I beg to move.

Baroness Blatch

My Lords, we have some difficulty in seeing how this would work. Removing the subsection would leave the accountability arrangements unclear and would open the decisions of the commissioner to judicial review and appeal. Under the amendments agreed there is no appeal process. The commissioner is a High Court judge, past or present, and it would be entirely new for the decision of a High Court judge to be questioned in this way. It would bring the commissioner into the domain of operational decision making which we believe would inevitably lead to his being questioned on his decisions in a number of cases and might lead to criminal prosecution. That must undermine the role and the function of the commissioner.

Lord Lester of Herne Hill

My Lords, before the Minister sits down, I do not quite understand the position. Unless I am completely mistaken, the commissioner is applying judicial review principles. He is not taking operational decisions himself. That is the vital point. He applies judicial review principles. What I do not understand—

Baroness Blatch

My Lords, with the leave of the House, and if the noble Lord will forgive me, we were discussing Amendment No. 80 in the context of the amendment of the noble Lord, Lord McIntosh. The amendment of the noble Lord, Lord McIntosh, gives the operational decision to the commissioner.

Lord Lester of Herne Hill

My Lords, we are also discussing the context of the amendment of the noble Lord, Lord Rodgers. That is why the whole thing is so bizarre. Let us assume that a judge approves the surveillance warrant, as with a search warrant, and then one has ex-post facto review by the commissioner, looking at the propriety of what is being done. That is a perfectly intelligible situation which one would have under ordinary law. In the ordinary way this would go to a judicial review court applying the ordinary principles of English administrative law. What Clause 96(4) states at the moment is that there is no appeal and the decision is not liable to be questioned in any court.

What I do not understand is, what is the policy objection to allowing even a High Court judge's decision to be able to be questioned in any court if he goes wrong in the way that he applies judicial review principles? I do not understand why that is considered to be objectionable in any way as he is not taking the operational decision; he is acting as though he were a judicial review court effectively in applying those principles. Unless I am mistaken about that, it seems to me that he should be able to have his decision challenged thereafter. If he goes wrong in law, the ordinary courts should be able to correct him. He should not be immune from law any more than any other person should be immune from the legal process.

Baroness Blatch

My Lords, this is an instance where I think noble Lords should take the matter away and reflect on the impact of two schizophrenic amendments which have been passed today. They now sit very uncomfortably together on the face of the Bill, or will do when we have the reprint of the Bill. We have in Amendment No. 80 a proposition which makes little sense in terms of how it will work in practice. I take issue with the noble Lord who keeps talking about the new authorising officers, whether it be a circuit judge or the commissioner, not taking operational decisions. The commissioner under the amendment of the noble Lord, Lord McIntosh of Haringey, will be approving this operation, hat is what the amendment said. The commissioner's role, of course, is to scrutinise, monitor and review his own decisions.

We believe that this is an ill-thought out measure, and for that reason we are opposing it. We believe that it merits being taken away and given more thought.

Lord Lester of Herne Hill

My Lords, can I correct that? The reason why the circuit judge or commissioner does not take an operational decision is that the operational decision is that of the police. The function of the judge at the outset is to decide whether the operational decision is according to the rule of law. That is the situation in every other democracy. Whether European or common law, it is always the judge who does it, and it is always well established that that is not an operational decision. If it were an operational decision then the judges would be running the police service, which is not at all the position of the Opposition parties. The judges are there to do the judging and the police are there to do the policing, but the police are accountable to the rule of law.

Lord Williams of Mostyn

My Lords, the Minister said, I believe rightly, that when one looks at this amendment it is in the context of the commissioner as introduced by the McIntosh amendment. The commissioner as approved by the McIntosh amendment is that judicial person whose prior approval is required before any bugging or intrusive activity can take place. If the Minister is right, and I believe she is, and we look at it in the context of the McIntosh amendment commissioner, the question I put was why, assuming a chief constable was convinced that the commissioner had got it wrong, the chief officer of police should not have the opportunity to appeal?

Baroness Blatch

My Lords, if that were the case, I see no reason why the chief officer should not simply reapply and put in a new application.

Lord Williams of Mostyn

My Lords, I believe that in the robing room that is called "forum shopping" and that that is the objection to it. I beg leave to withdraw the amendment, having pointed out, I hope, one or two infelicities in the situation in which we find ourselves.

Amendment, by leave, withdrawn.

[Amendment No. 81 not moved.]

Baroness Blatch moved Amendments Nos. 82 and 83: Page 38, line 30, after second ("the") insert ("Chief). Page 38, line 34, after ("the") insert ("Chief).

On Question, amendments agreed to.

[Amendment No. 84 not moved.]

Schedule 7 [Investigation of Complaints by Commissioner etc.]

[Amendment No. 85 not moved.]

Baroness Blatch moved Amendment No. 86: Page 68, line 10, after ("the") insert ("Chief).

On Question, amendment agreed to.

[Amendment No. 87 not moved.]

Baroness Blatch moved Amendment No. 88: Page 68, line 14, after ("the") insert ("Chief).

On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendment No. 89: Page 68, line 15, leave out from ("shall") to ("determine") in line 16 and insert ("consider all the circumstances of the case and shall").

The noble Lord said: My Lords, I thought the Minister had indicated that this was an amendment which the Government were proposing to oppose. I move it because, according to my understanding, it was grouped with Amendment No. 24. My understanding of the procedure of this House is that if an amendment is grouped with a previous amendment that has been carried, unless there has been explicit prior indication that anybody thinks it is not consequential it ought to be approved by the House without a Division. Notice was given that the amendments in the name of the noble Lord, Lord Rodgers of Quarry Bank, were not consequential. There was no indication from the Government that they had any intention of taking separately the amendments to which we are now talking, which include Amendment No. 89 and did include Amendments Nos. 80, 77, 74 and 65. I must formally record my objection to their opposition to these amendments since they had not indicated that they were going to object to the consequential nature which we had claimed for them when we moved Amendment No. 24.

Amendment No. 89 is concerned in Schedule 7 with the specific case that we discussed earlier and in which my noble friend Lord Williams took part. Schedule 7 provides—this is fundamental to the commissioner's work—that in carrying out his review of the determination, the commissioner applies the principles applied by a court on an application for judicial review.

As I said when this matter was debated earlier, I am not a lawyer and I am not familiar with the correct terminology, but my understanding is that something can be overturned by judicial review only if it is utterly unreasonable—someone has used the word "perverse".

We believe that to be the wrong criterion to be applied to the work of the commissioner, and that fundamentally the commissioner should be considering all the circumstances of the case rather than looking for perversity in the decision of the person authorising the intrusive surveillance.

Just to anticipate what the Minister may say in her reply, I do not believe that that is affected by the fact that Amendment No. 24 has been agreed to. We now have the position that there will be a body of commissioners rather than one commissioner. It is obvious that the sensible way for that body of commissioners to proceed is that when Commissioner A gives approval under Amendment No. 24 a different commissioner shall be responsible for the review. After all, that is what happens in the judiciary all over the place: judges are reviewing the work of other judges and making further judgments upon them. There is nothing difficult, illogical or unprecedented about that. When that review or determination takes place, it should take place after a proper consideration of all the facts rather than on the much more restricted basis on which a judicial review takes place. I beg to move.

Lord Rodgers of Quarry Bank

My Lords, I intervene only to raise in the presence of the Government Chief Whip the question of how long we shall continue with the Business of the House. It has been plain since the two amendments were carried earlier that the House was faced with genuine difficulties. I agreed when the Minister said that serious difficulties had been created as a result of the carrying of those amendments which in some respects are contradictory.

I moved the consequential amendments to the main amendment which had been agreed by your Lordships' House, and I think that the Government accepted that they should naturally follow. We have been discussing a number of amendments which are consequential upon Labour Amendment No. 24. We are not performing our function properly, and the Bill is not being subject to the scrutiny that the public deserve. This is not a party political point, and I hope not a controversial one.

The Bill has proved to contain more than anyone previously imagined. Although the Government may not like the amendments for judicial authorisation which have been carried, I do not believe that any Minister would deny that that debate was a very proper one, and that a decision by your Lordships' House, one way or another, was part of its proper scrutiny of the Bill.

When I look not just at the amendments which remain in the present part but those to be considered in Part V, I am appalled that we should set off on them between now and midnight and no doubt into the next day. It might very well be into 1998 were there not a general election intervening. It is not to the credit of your Lordships' House that we continue when we are all tired. The Minister has done a yeoman job, an extremely difficult one, and has managed the brief extremely well in hard circumstances. But she too is tired, however much she would wish to deny it.

I want to put it now to your Lordships that it would be wise to adjourn, that all parties would do their best to find a suitable opportunity early next week not to delay this Bill, because all of us in the House want to see this Bill, in so far as it deals with serious and organised crime, on the statute book reasonably quickly and, at the same time, compatible with proper scrutiny. I hope very much that that proposition will be considered.

If it is to be rejected, I ask that there should be a clear indication to your Lordships as to how much longer we are to carry on. I hope very much that it will include a clear statement that there are too many important matters in this Bill for them to be discussed tonight and, indeed, the Bill and the Home Secretary and Ministers would be subject to much justifiable criticism if we were to continue in the way that we are now doing.

11.15 p.m.

Lord McIntosh of Haringey

My Lords, I have already spoken on this amendment so, before the noble Lord sits down, may I add my support to what he has said? I had already indicated to the Government Chief Whip my conviction that the proper thing to do would be for us to complete Part III of the Bill, rather than intervening now, but still, certainly not to consider the very important matters which are contained in Part V of the Bill at what would be likely to be after midnight.

We have had the benefit of the contributions in this debate of a number of very distinguished noble Lords: Lord Justices of Appeal, Law Lords, previous Law Lords, previous Home Secretaries, a previous Attorney General, a past Prime Minister. None of them is here now. Nobody can blame them for that. They cannot contribute to the quality of your Lordships' debate as they did earlier on this afternoon. Surely, the proper thing for us to do, in the light of the determination of this House, as expressed last year, to debate things at a sensible time and in a sensible way, is to accept the suggestion of the noble Lord, Lord Rodgers and, if not now, certainly at the end of the consideration of Part III of the Bill to adjourn the consideration on Report until an early time, preferably this week, so that the matter can be properly discussed in the presence of a full House, rather than in the very limited scope for debate that we have at the moment. I would ask the Government Chief Whip, if that is the proper way for this to be addressed, to give us his views on this matter.

Baroness Blatch

My Lords, it will not be the first time that large numbers of noble Lords have been in this Chamber and have stayed only for the amendments in which they have an interest and have then departed the Chamber, very often much earlier in the day. So I do not regard that as a very good reason for curtailing our proceedings at this moment.

If there was any case whatsoever for accepting the advice of the noble Lord, Lord Rodgers, and the noble Lord, Lord McIntosh, it would have been perhaps earlier on in Part III, because if there is any cool reflection to be done at all on the effects of the amendments passed earlier in the day, it would be in relation to Part III. We are almost through Part III now. This has been in the diary for a very long time. It has been agreed through the usual channels. I am certainly prepared to see through the work of this part of the Bill today. All noble Lords were informed that this would be one day on Report and that the proceedings would be completed today. It is my view that we should get on and do that now.

Lord Rodgers of Quarry Bank

My Lords, the noble Baroness the Minister has referred to this part of the Bill, and I understood, until her final sentence, that she was making the suggestion that we should complete the consideration of Part III and that should be the end of the business for today. She referred to parts of the Bill. Is the noble Baroness now saying that it is not the endurance of Members of your Lordships' House which is at stake, but the credibility of the Bill and the credibility of the House in the eyes of the public? Is the noble Baroness indeed saying that, irrespective of progress, we should go on and on to complete the amendments on the Marshalled List? Is she saying that we should do that irrespective of the quality of our discussion and to whatever hour we go on?

Baroness Blatch

My Lords, I do not think it helps the issue of how long we take on this part of the Bill by continuing this debate. I feel that we should move on and complete the Report stage of the Bill tonight. I said that if there were a case at all for curtailing our proceedings, it would have made more sense and been more logical to have considered not taking Part III today while we reflected on the impact of the two amendments. They do not have an impact on the rest of the Bill.

I believe that we should now make haste and move on to the next part of the Bill. In the meantime, we have not completed the amendment on the Marshalled List which is before the House at the moment.

Lord Hacking

My Lords, I am not quite sure of the present position. Are we still considering Amendment No. 89? If so, perhaps I may intervene on that amendment.

I am a lawyer and confess—if the noble Lord, Lord McIntosh, will allow me to say so—that I am not wholly in agreement with his definition of the application of judicial review. But having said that, it seems to me that it is an administrative act that the commissioners are being invited to perform under paragraph 1(2) of Schedule 7. It seems to me that this amendment applies the right test for an administrative action by the commissioner and it is not appropriate to apply the judicial review test, although, as I said just now, the noble Lord's definition of judicial review is one with which I cannot wholly agree.

Baroness Blatch

My Lords, I find this an extraordinary amendment in the context of the main amendment that was passed this afternoon. The commissioner would review the merits of the decision of the authorising of intrusive surveillance when a complaint was made to him. But the commissioner is making the decision. He is giving the approval for the authorisation. This amendment would give the commissioner the power to review the merits of his own decision making, where he approves intrusive surveillance. I find that this amendment makes no sense whatsoever.

Lord McIntosh of Haringey

My Lords, I am afraid that that is exactly the reason why we should not continue our consideration of this Bill tonight. That is why the noble Lord, Lord Rodgers, is correct. I should have been glad to have taken instruction from the noble Lord, Lord Hacking, about the meaning of judicial review principles. I am sorry that I have been denied that opportunity. I do not find the Minister's view on this amendment helpful.

I am seriously considering whether, so far as concerns the Opposition, we should simply not move any of our amendments on Part V and bring them all back at Third Reading. In my view, that would be in breach of some of the conventions of this House because a Third Reading is supposed to be limited to matters which cannot be resolved earlier. But if we cannot resolve matters in a civilised way at a civilised time of day, we shall have no alternative but to do that. I do not believe that it is the way that your Lordships should consider Bills. But if we get to midnight and are still on matters of such fundamental importance as criminal conviction certificates and criminal record certificates, I give notice that it is highly likely that we shall simply move all that business to Third Reading, at the expense of the proper consideration that we should wish to have. I beg leave to withdraw Amendment No. 89.

Amendment, by leave, withdrawn.

The Deputy Speaker

My Lords, in calling Amendment No. 90, I must tell the House that if that amendment is agreed to, I cannot call Amendment No. 91.

[Amendment No. 90 not moved.]

Baroness Blatch moved Amendment No. 91: Page 68, line 19, after first ("the") insert ("Chief).

On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 92: Page 68, line 21, at end insert (", and (b) make a report of his findings to the authorising officer who gave the authorisation or in whose absence it was given and, under section 97(1), to the Prime Minister.").

The noble Baroness said: My Lords, the amendments tabled to Schedule 7 and Clause 97 are closely linked.

The purpose of the first amendment to Clause 97 is to clarify more specifically the grounds on which the Prime Minister may exclude material from the commissioner's report laid before Parliament. As presently drafted, the Bill limits the discretion of the Prime Minister to excluding material prejudicial to the continued discharge of the functions of any police authority, service authority, etc. This amendment makes it clear that material may also be excluded on the grounds that its inclusion would be prejudicial to the prevention or detection of serious crime. The amendment seeks to ensure greater consistency between those respective roles and the discretion available to the commissioner and the Prime Minister and is in line with the powers of the Prime Minister to exclude material in IOCA.

The amendment to delete Clause 97(5) is necessary, as the Bill, as presently drafted, does not allow the commissioner to give the reasons for his decisions without the consent of the originator of the document or information provided to him. The wording of this clause is clearly at odds with the amendment to Schedule 7, which requires the commissioner to report his findings to the authorising officer who gave the authorisation and to the Prime Minister. It is right that the commissioner should have full discretion to disclose information about the exercise of these powers to the Prime Minister and so that he can report any concerns about the way the provisions are being used. It is also right that the authorising officer should be informed of reasons why an authorisation has been quashed and the destruction of records ordered, especially as the authorising officer may well be required to pay compensation, although that is a question still to be answered. This would not be possible if the commissioner did not have the discretion to disclose documents.

I hope therefore that the amendments will be welcomed. I beg to move.

Lord McIntosh of Haringey

My Lords, on the face of it, there can be no objection to Amendment No. 92 and its consequential Amendment No. 95. The fact that the Commissioner should make a report of his findings to the authorising officer is entirely proper, although of course there will have to be a consequential amendment following the passage of Amendment No. 24.

I worry when I look at Amendments Nos. 118 and 122, which are grouped with Amendment No. 92. Amendment No. 118 restricts the publication of the report and Amendment No. 122 removes the restriction on disclosure without consent. When I was notified of the intention to group these amendments together, I expressed my surprise that it was thought that amendments which appeared to go in opposite directions should be consequential one upon the other. I expressed that surprise before the grouping of the amendments was finalised. I would still welcome a explanation from the Minister as to why what appear to be not mutually contradictory amendments in the literal sense but amendments moving in different directions should be grouped together in this way.

On Question, amendment agreed to.

[Amendment No. 93 not moved.]

Baroness Blatch moved Amendment No. 94: Page 68, line 23, after first ("the") insert ("Chief).

On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 95: Page 68, line 25, at beginning insert ("Subject to sub-paragraph (1Kb),").

On Question, amendment agreed to.

[Amendment No. 96 not moved.]

Baroness Blatch moved Amendment No. 97: Page 68, line 25, after ("The") insert ("Chief).

On Question, amendment agreed to.

Baroness Hilton of Eggardon moved Amendment No. 98. Page 68, line 25, leave out ("not give any") and insert (",provided that to do so would not be prejudicial to the continued discharge of the functions of any police authority, the functions of the Service Authority for the National Criminal Intelligence Service or the Service Authority for the National Crime Squad or the duties of the Commissioners of Customs and Excise, give his").

The noble Baroness said: My Lords, we are back to the commissioner not having to give reasons for a determination and not having to answer in any court. This amendment attempts to provide that he will give reasons for a determination, for his decision, provided that doing so would not be prejudicial to the functions of a police authority, or to the service authority for NCIS or to the service authority for the National Crime Squad.

We are again attempting to put some greater degree of openness into the system. Unless there are operational reasons why the commissioner should not give reasons for a determination, it should be exposed to the public gaze and the public should be aware of any reason that he may have for deciding that an authority has or has not been properly given for the use of surveillance equipment. We see it as an important safeguard of civil liberties that so far as possible without jeopardising operational efficiency and effectiveness the commissioner's actions should be open and the actions of the police should be open to scrutiny. I beg to move.

11.30 p.m.

Baroness Blatch

My Lords, again I must point out the parallels between the provisions contained in this Bill relating to the role and functions of these commissioners and those of the other commissioners. All will be dealing with serious crime and we see no reason why the role of a surveillance commissioner should be different.

The amendments tabled allow a commissioner to give reasons for his determination to the Prime Minister and the authorising officer. This is necessary if the authorising officer is to know why the commissioner does not believe an authorisation should have been given. The commissioner can also give reasons to the Prime Minister so that the Prime Minister will be aware of any concerns about the way in which these provisions are being used. It would, though, be extremely difficult for the commissioner to give reasons for his determination to a complainant without revealing details of the activities of the police and Customs and revealing damaging information about the techniques and methods being used. It would also, doubtless, lead to insubstantial complaints being made by criminals merely to test whether they are the subject of surveillance. I believe that the amendment would be the criminal's friend. I hope it will not be pressed.

Baroness Hilton of Eggardon

My Lords, my concern is for the innocent person who has been subjected to these surveillance techniques. Of course I have no concern for criminals in this situation, but inevitably mistakes will be made and innocent people will have bugs planted in their houses or have their telephones tapped or be subjected to other methods of surveillance. It is curious that the Government are not concerned for innocent people who may be exposed to these methods of surveillance. In a democracy it is surely important that these methods should be as open as possible to scrutiny.

There is the idea that people do not know about this equipment. However, one can buy it at Heathrow. One can buy a vast array of surveillance equipment in the duty-free part of Heathrow airport. There are also shops selling it. I saw one off Queensway the other day which sells this surveillance equipment. People who read thrillers, as I do, are well aware of the equipment that is available. Police often have the notion that things are secret when they are not. Sophisticated criminals of the kind we are talking about will be well aware of the equipment that is available.

I am concerned to protect innocent people who may be subjected to this surveillance in their homes. It is not a question of protecting criminals. In this amendment we have provided exemptions for situations where operational effectiveness would be jeopardised. I am talking about the innocent citizen who is subjected to bugging in his house. That is something the Minister seems to fail to gather when she talks about amendments supporting criminals. Nevertheless, at this late hour, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 99 not moved.]

Baroness Blatch moved Amendment No. 100: Page 68, line 28, after ("the") insert ("Chief).

On Question, amendment agreed to.

Baroness Blatch moved Amendments Nos. 101 to 104: Page 68, line 29, leave out from ("may") to the end of line 34 and insert ("(whether or not he has exercised, or intends to exercise, the powers under section 96(1 C))"). Page 68, line 35, leave out ("granted") and insert ("gave"). Page 68, line 36, leave out ("granted") and insert ("given"). Page 68, line 37, after ("the") insert ("Chief").

The noble Baroness said: My Lords, these amendments have already been dealt with. I beg to move.

On Question, amendments agreed to.

[Amendment No. 105 not moved.]

Baroness Blatch moved Amendment No. 106: Page 68, leave out lines 38 to 44.

The noble Baroness said: My Lords, this amendment is grouped with Amendments Nos. 109, 121 and 126. These amendments are intended for the purposes of clarification and interpretation only. They are intended to provide clarification and assist in the interpretation of certain of the Bill's provisions. Amendment No. 126 represents a transfer of the definition of criminal proceedings from where it was previously located in Schedule 7. Amendment No. 106 deletes the previous reference. These changes are necessary as there is now more than one reference to criminal proceedings in the Bill and it is more appropriate that this definition be included in the specific interpretation clause. Amendment No. 109 is also intended for clarification and interpretation. Paragraphs (b) and (e) of Clause 91(6) refer specifically to the Metropolitan Police and the Royal Ulster Constabulary. These are the biggest police forces in the United Kingdom, and the operational demands on them are reflected in the fact that the Bill makes provision for more than one authorising officer. This amendment confirms that any written notification of reasons for an adverse decision from a commissioner will be directed either to the commissioner of police or the chief constable of these particular forces, as appropriate.

Amendment No. 121 ensures that the reference to serious crime is correctly read in accordance with the definition in Clause 91(5). I beg to move.

On Question, amendment agreed to.

[Amendment No. 107 not moved.]

Baroness Blatch moved Amendment No. 108: Page 68, leave out lines 38 to 44.

The noble Baroness said: My Lords, I have already spoken to this. I beg to move.

On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 109: Page 69, line 10, at end insert— ("Interpretation 5. The references in this Schedule to the authorising officer who gave the authorisation or in whose absence it was given shall, in the case of an authorisation given by or in the absence of a person within paragraph (b) or (e) of section 91(6), be construed as references to the Commissioner of Police or, as the case may be, the Chief Constable mentioned in the paragraph concerned.").

The noble Baroness said: My Lords, I spoke to this amendment with Amendment No. 106. I beg to move.

On Question, amendment agreed to.

Clause 97 [Supplementary provisions relating to Commissioner]:

Baroness Blatch moved Amendment No. 110: Page 38, line 35, after first ("The") insert ("Chief).

The noble Baroness said: My Lords, this amendment was spoken to with Amendment No. 50. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 111 to 114 not moved.]

Baroness Blatch moved Amendments Nos. 115 and 116: Page 38, line 39, after ("the") insert ("Chief). Page 39, line 1, after first ("the") insert ("Chief).

The noble Baroness said: My Lords, both these amendments were spoken to with Amendment No. 50. I beg to move.

On Question, amendments agreed to.

[Amendment No. 117 not moved.]

Baroness Blatch moved Amendment No. 118: Page 39, line 2, after ("to") insert ("the prevention or detection of serious crime or otherwise to").

The noble Baroness said: My Lords, I spoke to this with Amendment No. 92. I beg to move.

On Question, amendment agreed to.

[Amendment No. 119 not moved.]

Baroness Blatch moved Amendment No. 120. Page 39, line 8, after ("the") insert ("Chief).

The noble Baroness said: My Lords, this was spoken to with Amendment No. 50. I beg to move.

On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 121: Page 39, line 10, at end insert— ("() In this section, "serious crime" shall be construed in accordance with section 91(5).").

The noble Baroness said: My Lords, this was spoken to with Amendment No. 106. I beg to move.

On Question, amendment agreed to.

The Deputy Chairman of Committees (Baroness Cox)

Amendment No. 122: I should point out that if this amendment is agreed to I cannot call Amendment No. 123 because of pre-emption.

Baroness Blatch moved Amendment No. 122: Page 39, line 11, leave out subsection (5).

The noble Baroness said: My Lords, this was spoken to with Amendment No. 92. I beg to move.

On Question, amendment agreed to.

[Amendment No. 123 not moved.]

[Amendments Nos. 124 and 125 not moved.]

Clause 98 [Interpretation of Part III]:

Baroness Blatch moved Amendment No. 126: Page 39, line 17, at end insert— (""criminal proceedings" includes— (i) proceedings in the United Kingdom or elsewhere before a court-martial constituted under the Army Act 1955, the Air Force Act 1955 or the Naval Discipline Act 1957 or a disciplinary court constituted under section 50 of the Act of 1957, (ii) proceedings before the Courts-Martial Appeal Court, and (iii) proceedings before a Standing Civilian Court;").

The noble Baroness said: My Lords, I spoke to this amendment with Amendment No. 106. I beg to move.

On Question, amendment agreed to.

Schedule 8 [The Police Information Technology Organisation]:

Baroness Blatch moved Amendment No. 127: Page 71, line 10, at end insert— (".—(1) The Organisation shall be liable in respect of a tort committed by a member of a police force engaged on service with the Organisation in the performance or purported performance of his functions in like manner as a master is liable in respect of torts committed by his servants in the course of their employment, and shall in respect of any such tort be treated for all purposes as a joint tortfeasor. (2) In relation to Scotland, sub-paragraph (1) shall not apply but the Organisation shall be liable in reparation in respect of a wrongful act or omission on the part of a member of a police force engaged on service with the Organisation in the performance or purported performance of his functions in like manner as a master is so liable in respect of any wrongful act or omission on the part of his servant in the course of the servant's employment.").

The noble Baroness said: My Lords, in speaking to Amendment No. 127 I shall speak also to Amendment No. 188. These two amendments are technical in nature and among other things paragraph 80 of Schedule 9 provides that the Police Technology Organisation shall be liable for torts committed by police officers while on secondment to the organisation. The provision is defective in that it only makes PITO liable for torts committed by officers on secondment from forces in England and Wales. The replacement provision to be inserted in Schedule 8 ensures that PITO is liable for torts committed by seconded constables from all parts of the United Kingdom. I beg to move.

On Question, amendment agreed to.

Clause 102 [Criminal conviction certificates]:

Lord Rodgers of Quarry Bank moved Amendment No. 128: Page 40, line 42, at end insert— ("(1A) The Secretary of State shall issue a Criminal Conviction Certificate to any individual who seeks nomination for election to Parliament under the Representation of the People Act 1983, which certificate shall require to be lodged with the Returning Officer as a condition of nomination and to be open to public inspection.").

The noble Lord said: My Lords, if I were to pause a moment that might enable the Government Chief Whip to do the wise and sensible thing. As we have completed one part of the Bill, may I invite the noble Earl the Whip to rise in his place and, in the interests of the way in which we conduct our business and the regard in which this House is held, suggest that the very important issues which still lie before us should not be taken today but should be postponed until next week. We have already made it clear that the important decisions taken earlier today by the House need careful thought by the Home Secretary. I shall give the Whip the opportunity to rise and to suggest that instead of proceeding with Third Reading next week, we should deal with the rest of Report stage. I shall pause for a moment to enable some response to be given.

Baroness Blatch

My Lords, I can speak for my noble friend. I know that he has given serious consideration to this question. He is not only aware that it has already been raised in the Chamber, but was aware that it was going to be raised in the Chamber. My noble friend has considered the matter carefully and has suggested—and I absolutely agree— that we should continue as planned to complete this Report stage.

Lord Rodgers of Quarry Bank

My Lords, if this is to be an endurance test, we are up to it. We shall continue to debate these important issues, but it should be on the record that we are letting down the public and all those who are closely interested in the Bill by debating it at this hour. I believe that that was never the Government's intention in the first instance. The Government Chief Whip has now entered the Chamber, so I give him the opportunity which I gave earlier to one of his colleagues because I know that he wishes to rise to suggest that we should now conclude the business for today.

Lord Strathclyde

My Lords, as the House knows, I have just entered the Chamber and heard my name being called. I think that the noble Lord is complaining that we are sitting rather late and is suggesting that we should stop. I believe that that is the broad thrust of what the noble Lord has been saying. I am happy that we should continue to finish Report stage, which is what we intended to do when we started this afternoon. Nothing has happened to change my opinion so, rather than discussing whether or not we should continue, I hope that we shall get on and complete the Bill tonight.

Lord Rodgers of Quarry Bank

My Lords, I was not complaining at all. I was saying that the Government Chief Whip should have regard to the high standing in which this Chamber is held and to the very widespread belief that if we discuss these important matters at this late hour, inevitably they will not receive the scrutiny they deserve and we shall not be performing our proper scrutiny under the constitution. I have no complaint. As I have said, our endurance is at least as great as that of Ministers. However, I believe that the Chief Whip should have some thought for the hard work which the noble Baroness the Minister has put in today and that he should assume that, despite all her denials, it is time to go home. If the noble Lord refuses to let us go home, then let us get on with the business, which is what I now propose to do.

At Second Reading, in reference to what was then Clause 100, I referred to the extent to which what is now Clause 102 was unacceptable. We strongly support Clauses 103 and 104 in so far as they provide for criminal record certificates and in so far as they protect young people and other vulnerable groups. Therefore, in Committee I sought to delete what is now Clause 102. Further amendments (which we shall now be discussing in the early hours of tomorrow) are designed to postpone the coming into operation of Clause 102 for good and sufficient reasons. This amendment is without prejudice to that view.

At Second Reading, I referred to the possibility of introducing such an amendment in order at least in part to ridicule the unfairness of this clause and to draw attention to the extent to which it distorts priorities. If we are to legislate in the way proposed in Clause 102—we know that in the private sector it will become the practice for employers to require prospective employees to have criminal conviction certificates—surely it is most important that that is the rule within a key public role.

I do not believe that any noble Lord denies that trust in Members of Parliament is something for which we must all ask. There is no better way of safeguarding trust in Members of Parliament than for it to become essential that they deposit criminal conviction certificates at the time of their nomination. If building and factory workers are required, as they will be, to produce such certificates, surely it is reasonable to ask any candidate to deposit such a certificate at the time of his nomination.

It was argued by the Minister, and referred to by other Members of your Lordships' House, that candidates for Parliament appear before selection conferences. That is not wholly true. If at the next election there are about 3,000 candidates, on past evidence at least 500 of them will not have been before selection conferences. Noble Lords know that the procedures to enable people to be nominated and stand for election are very liberal in this country, and rightly so. But they are so liberal that any individual who properly gets himself or herself nominated can stand for Parliament without a party label. In those circumstances, it is not possible to argue that a selection conference provides a natural obstacle that a candidate has to overcome. Therefore, it is for a selection conference to require the production of a criminal conviction certificate.

I believe I said in Committee that during a normal party hearing it would be ridiculous to expect someone at the back of the hall to pipe up and say, "Can we see the candidate's criminal conviction certificate?" That is not the way of the world or the way that we want it to be. My amendment does not refer to Members of Parliament. It would be improper to seek to legislate on their behalf. However, the amendment refers to parliamentary candidates. It is within the capacity of your Lordships' House as a second chamber in our parliamentary system to express a view on that matter without any possibility of a conflict with another place.

The case for the amendment is simple. There should not be one rule for a voter seeking a job and another for a candidate seeking election to Parliament. Although that is not what the Bill says, that is the purport of what will happen. A voter seeking a job will increasingly be required by his employer to show a clean criminal conviction certificate while a candidate who seeks election to Parliament has no such safeguard to demonstrate.

I do not believe that a failure to take account of this matter will win support for the institution of democracy. The appointment of the noble and learned Lord, Lord Nolan, and the well justified stories of sleaze in another place have brought Parliament into disrepute. The acceptance of this amendment by the Minister would be a very minor and otherwise non-controversial matter, but it might be a large step for the reputation of Parliament in the eyes of the public. I beg to move.

Baroness Blatch

My Lords, there is no requirement in this Bill, or in any other statute, for any particular person or member of any group to produce criminal record certificates. It simply makes provision for such certificates to be provided to individuals and other bodies in certain circumstances. Criminal conviction certificates would be issued only to individuals. If this amendment were accepted, any parliamentary candidate would be compelled to disclose his certificate to the returning officer. It would also be necessary to amend the Representation of the People Act 1983 in order to give returning officers the power to disqualify candidates who refused to lodge their criminal conviction certificates.

I cannot see why the noble Lord singles out candidates for election to the United Kingdom Parliament for this special treatment when there are equally valid reasons for requiring candidates for a whole range of other occupations or posts to be treated in the same way. I have in mind, particularly, candidates to the European Parliament or local councils, and a significant number of nominees for public bodies and committees, many of whom give their time voluntarily.

As I made clear in Committee, a selection committee, or indeed an individual elector, has a perfect right to request sight of a candidate's criminal conviction certificate if they so wish; but it should be up to the candidate himself to decide whether or not to disclose it. The committee or elector may, of course, infer what they wish from an unwillingness to disclose these details; that is a matter for them and for their prospective candidate. But at least the individual would be given the right to make the decision himself, like every other citizen in the land. I hope that the amendment will not be pressed.

Lord Rodgers of Quarry Bank

My Lords, I fully understand what the Minister said; namely, that there is no requirement in the Bill that people should show a criminal conviction certificate. But the message is very plain. That is why this clause was included in the Bill: employers will in future have a very convenient way of finding out whether their employees have or have not any spent convictions by asking them to produce a criminal conviction certificate. It will of course be issued on request; it will be issued on payment of a fee. However, I am sure experience will show that it becomes a routine requirement, although the legislation does not make it a requirement under statute.

Secondly, if it requires an amendment to the Representation of the People Act 1983, so be it. I am not aware that noble Lords are unwilling to legislate when there is a case for doing so because there may be consequential legislation required elsewhere. The noble Baroness has not said, nor could she say, that it would be improper for this House to legislate in that way. Noble Lords could choose to pass this amendment and the consequences could follow.

Thirdly, the Minister asked: why the UK Parliament? I was tempted to go much further. Originally I had it in mind to table an amendment of the kind that she proposes, although I am not sure that she proposes to table it herself, in order to add completeness to the proposal I presently have before the House.

The Minister is right in saying that all those elected to public office, whether to local councils or to the European Parliament, have a special trust. Were there time, and perhaps on another occasion or even at Third Reading, I might want to extend this provision to them. But I thought it wise to start somewhere. I thought it right to start at a point which is most attractive to Members of this House.

Whatever we believe about the European Parliament or about probity in local government, the fact is that we in this Chamber are part of Parliament itself. There are many, particularly in the party of the noble Baroness the Minister, who believe that the sovereignty of this Parliament is the essential part of our constitution. I believe that it has been compromised, and quite rightly, by our membership of the European Union. Yet it remains a fact that this Parliament of the United Kingdom is a source of the institutional democracy in which we all believe. And it is this Parliament of the United Kingdom that has been most under criticism for the sleaze which led to the appointment of the noble and learned Lord, Lord Nolan, and the adoption of new practices both by another place and by ourselves.

To argue that because we have provision in this amendment only for the UK Parliament and that somehow negatives its justification is a very narrow and rather mean way of looking at the amendment.

I said earlier that I thought we were proceeding beyond the point at which legislation could have proper scrutiny. I think it behoves me in those circumstances, as no other Members of this House feel prepared at this hour to participate, and it would be consistent with my view about proper scrutiny and not seeking to make progress with the Bill or to change it without other Members being able to take part in the discussion, to withdraw the amendment, which I now do.

The Deputy Speaker (Baroness Cox)

My Lords, the Question is that the amendment be withdrawn.

Lord Strathclyde: No!

On Question, amendment negatived.

[Amendment No. 129 not moved.]

Lord Rodgers of Quarry Bank moved Amendment No. 130: Page 41, line 13, at end insert— ("(5) Any day appointed by an order made under section 121 below for the coming into force of this section shall not be earlier than two years after the coming into force of sections 103 to 113 below. (6) This section shall not come into force until the Secretary of State has laid before Parliament a report containing an evaluation of the effect of sections 103 to 113 below and his assessment of that evaluation.").

The noble Lord said: My Lords, if you felt that the previous amendment was less serious than some others before the House, and for that reason felt that it was not one on which you wished to intervene, I believe that this amendment gets to the heart of Part V of the Bill, in particular the provisions for criminal conviction certificates.

I referred to it briefly in moving the previous amendment. It is a development of what I moved in Committee. In Committee, I moved that Clause 102, as it now is, should not stand part of the Bill. There was significant cross-party support for that view, especially from the Labour Benches. The noble Lord, Lord McIntosh, felt unable to support it, but a number of his noble friends found that it had merit and would have preferred not to see the clause stand part of the Bill.

What I want to say tonight is, first, that Clause 102 is not central to the Bill nor to this part of it. Secondly, there is a clear distinction between Clause 102, which deals with criminal conviction certificates, and Clauses 103 and 104, which deal with vulnerable groups and which we strongly support. Thirdly, there is widespread anxiety about the consequences of Clause 102 as it stands.

In Committee, I drew attention in particular to the views of the National Association of Citizens Advice Bureaux, which is not a campaigning organisation in the normal course of affairs but has made very strong representations about Clause 102. I also drew attention to the views of the Penal Affairs Consortium. Indeed, it was felt on all sides of the Committee that the consequences of this clause for those who have at some stage been guilty of a criminal offence were the strongest case against it.

As the Minister said that, and as she will no doubt say again in respect of this clause, those with a spent conviction have no need to worry. However, in Committee I made clear that many of those who committed an offence 10 years or more ago and have had a clean record since will nevertheless find that conviction on a criminal conviction certificate. It will make it far more difficult to rehabilitate criminals if they find it impossible to obtain work.

Although, as the Minister said in our previous discussion, there will be no requirement to show a criminal conviction certificate, I repeat that for a very large variety of jobs employers will require prospective employees to show one. If they fail to do so and the prospective employee when employed commits an offence, they will be open to criticism. However, if they require a prospective employee to produce such a certificate and that certificate shows unspent convictions, it is very unlikely that they will seek to employ such a person because they will know what criticism would fall upon them if that person, once employed, were guilty of a breach of trust. Indeed, I greatly fear that once a criminal conviction certificate has been made available to an employer, if there is an occasion when suspicion falls on any member of the workforce, it will fall on the man or woman who has unspent convictions on his or her criminal conviction certificate.

Therefore, I believe, like noble Lords on all sides of the House, that there are very strong reasons against Clause 102 as it stands. The clause is an unnecessary intrusion into privacy and, as I say, would make much more difficult the rehabilitation of those prisoners who wish to go straight and who need jobs. Indeed, those with a criminal record may be tempted to perpetuate the course upon which they once embarked or an attempt to go straight may be reversed because of the problem of finding employment as a result of the certificates.

It would not be appropriate on Report and the procedures of your Lordships House do not allow me to press again the amendment which I tabled in Committee. Therefore, I have tabled an amendment which is a compromise. I hope that it may be acceptable to all parties in the House. The phased introduction of Clause 102 is put forward as a compromise which I hope will be reasonably considered.

It is common among all parties in your Lordships' House and on the Cross Benches that the most important clauses in this part of the Bill are Clauses 103 and 104 which provide for criminal record certificates and enhanced criminal record certificates. Therefore, the priority is that those clauses should pass through your Lordships' House and be embodied in the Bill. On these Benches it is our anxiety that that should happen as soon as possible. But if the priority is that Clauses 103 and 104 should be put first, there is no cost whatever involved in allowing Clause 102 to be introduced over a period of time.

Secondly, widespread concern was expressed in Committee on behalf of many organisations affected by the Bill as to the matter of cost. Indeed, the Government are gravely concerned about the cost implications of the passing of the amendment which stood in the name of the noble Lord, Lord Weatherill. If the provisions of the clause are not introduced except after a pause and reference to your Lordships' House, then that would be for the convenience of the Government as well as for the convenience of many organisations outside.

Thirdly, we are in new territory in Clauses 102 to 104. Sometimes, when we are in new territory, it is wise to walk warily and one step at a time. I am sure that we shall learn by experience how the rest of Part V works. When we have learnt by that experience, after the pause embodied in this amendment, it will be time, following report to Parliament, to go forward with the provisions of Clause 102.

Fourthly, and it follows from what I have just said, there are those of us—and I have expressed my view very plainly—who are deeply sceptical about this clause. We are very unhappy with it. But we may be wrong, just as the Minister may be wrong in believing that the clause is essential to the Bill. However, if we reach the compromise I mentioned we shall all learn from experience. Under the compromise, there will have to be a report to Parliament which will evaluate the effects of Clauses 103 and 104. That may very well persuade myself, my colleagues on these Benches and other noble Lords that Clause 102 needs to be implemented without delay. On the other hand, it may make the Government feel that there is reason to pause still further. Therefore, it provides this House with an opportunity to think again, although the clause itself would be embodied in the Bill.

I believe that my amendment is a painless solution to multiple problems facing the Government and the Opposition parties. As I say, the Government are worried about costs and where they will fall, as are the public. Perhaps I may say, with great respect and not wishing to be critical in any way at this juncture, the Labour Party does not wish to be misunderstood in its belief in zero tolerance. Therefore, it is anxious that Clauses 103 and 104 should go through. I wholly understand and support that view.

In such circumstances, the House could support my amendment—as I believe it would indeed do if we were debating the matter at a different hour—which, if carried, would strengthen the Bill. It would take nothing away which is essential to it and would strike a degree of harmony which, alas, has been absent for large parts of today. Surely it should be our meeting point in a piece of legislation which many of us support in so many of its respects. I beg to move.

Lord McIntosh of Haringey

The noble Lord, Lord Rodgers, is quite right to remind the House that we were unable to support his opposition to Clause 102 in Committee. He is also right to claim that what he now proposes is a compromise—a fall-back, if you like. It seems to us to be entirely sensible. In the end there will have to be some form of criminal conviction certificate, but we believe that the highest priority must be for the criminal record certificates and for the protection of vulnerable young people and, indeed—in the light of the amendments that we shall shortly be discussing—vulnerable adults. The delay proposed in the amendment is simply a recognition of reality. Such certificates and procedures will be expensive, although not as expensive as the Government claim, partly because of the amendment which was passed in Committee under the name of the noble Lord, Lord Weatherill.

If we delay the implementation of Clause 102 as is now proposed, then the preservation of Clause 103 and 104 within reasonable budgetary limits, including the amendments of the noble Lord, Lord Weatherill, is that much more likely. I believe that it is in the Government's interest to agree to this modest and sensible amendment.

Lord Thomas of Gresford

As my noble friend Lord Rodgers said a moment ago, we are entering into new territory in considering criminal record certificates. The first question that we have to consider is: what purpose are they supposed to serve? Clearly there is no intention that a member of the public should be able to approach an individual in the street and demand to see his certificate of criminal record, so there must be a purpose to it. That purpose is clearly in connection with applications for appointments and for jobs. When one reaches that point, one realises that there is a balance to be struck—where does the public interest lie in considering who should have access to criminal record certificates?

When one looks as Clauses 103 and 104 and considers that these certificates are to be used and shown for the purposes of jobs and appointments in a very vulnerable sector, one can see quite clearly that the public interest lies in showing such certificates to the employers who will employ people for the purposes of dealing with children, and so on. Such assurance should be given to them. However, when one enters into the whole field of work, employment and appointments, very different considerations then arise.

It is certainly right that information should be available to employers showing that a person has been convicted of dishonesty if he is applying for a job or an appointment which involves a position of trust. Equally, it is of importance that a person who has convictions for violence should disclose those convictions if he is concerned with an occupation which is in direct contact with the public. It is a matter for the employer when he considers the risk he takes in employing that person, the insurance implications and the possible effect of having such an employee upon the other people who work for him. These are short-term protections for the employer.

There is a public interest in preventing further offences altogether. The rehabilitation of an offender is simply another and better means of protecting the public. In the long term it is healthier for society that people who have convictions should not re-offend.

The problem that arises in relation to Clause 102 in considering the whole breadth of the employment field is that, in order to avoid re-offending, a person who has been convicted must be given the responsibilities of a job and must have his home and family. A person who has been convicted, has received training and rehabilitation in prison and is given all the support services when he comes out of prison may be faced with severe job discrimination because of the fact that he has convictions recorded on his certificate of criminal record. It may be that he may apply, in competition with other people, for a job which has no obvious connection, or no connection at all, with the type of offence for which he has been convicted. If, through job discrimination arising out of a certificate of criminal record, the past offender cannot obtain a job and remains unemployed, the cycle is not broken. He is likely, through necessity, to commit more crime; he is liable to go back to prison; and so his life continues in that downward spiral.

Clause 102 gives rise to the problem that we are attempting to go into new territory without any form of pilot scheme or experience as to how this type of certificate will work. Where the public interest is firmly in favour of the person seeking employment in a vulnerable field, surely that is the place for a start to be made. It is only in the light of experience over a number of years that we can truly evaluate whether the principles that lie behind Clauses 103 and 104 should, in the public interest, be extended to the whole range of employment.

Baroness Blatch

My Lords, I can assure noble Lords that the criminal conviction certificates are not as malign and intrusive as has been suggested. They will be issued only to the individual concerned and to no one else. They will contain details of unspent convictions only, in line with our commitment to the rehabilitation of offenders; and they will enable employers to confirm that the information that they have been given by an applicant is full and accurate.

It may well be the case that we will choose to phase in the introduction of criminal conviction certificates so that the fledgling agency is not flooded with applicants from the outset and is able, initially, to concentrate on issuing the more important and probably less numerous criminal record and enhanced criminal record certificates. However, their eventual introduction is an administrative matter concerned with workload and timing. It will be done when it is considered that the agency will be able to manage this extra work. The introduction of the certificates is not dependent upon the perceived success of other certificates, nor should it be. They are different types of checks which are being introduced for different purposes.

I would suggest that it is not necessary for the Secretary of State to lay before Parliament an evaluation of the initial success of criminal record and enhanced record certificates before any criminal conviction certificates can be issued. During the passage of this Bill the whole subject of criminal conviction certificates will have received full parliamentary scrutiny, and, if the measures become law, parliamentary approval as well. In these circumstances further scrutiny should not be required.

The evaluation that will really matter is the evaluation undertaken when a system is properly up and running to measure the impact on those people who will be subject to it. By delaying the introduction of criminal conviction certificates by at least two years, we would perhaps be unnecessarily delaying the implementation of a new criminal record system which will be coherent, cost effective, transparent and, above all, fair.

12.15 a.m.

Lord Rodgers of Quarry Bank

My Lords, I do not understand why there would be delay to the introduction of a new criminal records system if a decision were made simply not to issue certificates for a period of two years until there had been the possibility of evaluating the effect of Clauses 103 to 113. I must have misheard the Minister because I thought she implied that it was open to the Home Secretary to implement this clause when and how he chose within the statute. The Minister is nodding her head. Perhaps she will explain the position more fully as I did not catch everything she said. Is she saying that it lies within the capacity of the Home Secretary, with the Bill as drafted, to delay the coming into effect of this clause of the Bill?

Baroness Blatch

My Lords, it is open to us to make decisions about implementation dates for the commencement of parts of the Bill, but I made it clear that we could choose to phase the introduction of criminal conviction certificates. I also said that our considerations would be workload and timing.

Lord Rodgers of Quarry Bank

My Lords, I shall want to read that response carefully. It sounded to me a sympathetic response. The noble Lord, Lord McIntosh, said that the amendment was a recognition of reality. It may well be that what the Minister is saying is also a recognition of reality. She referred to the evaluation. The evaluation as provided for in this amendment would be the responsibility of the Secretary of State. He would have the final say in deciding what came before Parliament. I think that the Minister is moving in the direction of my amendment. Certainly I shall wish to scrutinise carefully what she said. I ask her only to think further on this matter. If it needs an amendment, it may be possible to return to it at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 131: Page 41, line 13, at end insert— ("() The Secretary of State shall issue a criminal conviction certificate to an applicant within 7 days of the receipt of his application.").

The noble Lord said: My Lords, in moving Amendment No. 131 I wish to speak briefly to Amendments Nos. 137 and 172. These are self-evidently probing amendments. They set what I think would probably be impossible deadlines for the delivery of criminal conviction certificates, but they do so because of the concern that has been expressed in a number of quarters about whether the Phoenix database, which will be necessary for the establishment of the Criminal Records Agency, will be up and running. We moved different amendments with the same purpose at Committee stage making the Secretary of State responsible for the accuracy of the contents of the certificates. This time we are not concerned so much with the accuracy of the certificates but the timescale with which they will be supplied.

Despite what I said, it is not entirely stupid to require that certificates should be available within seven days; after all, it is always a question of urgency to apply for jobs when they are vacant. Any significant delay, in particular as regards criminal record certificates—I refer to Amendment No. 137— could be damaging. We are looking for an assurance that the Phoenix database system will be up and running and that it will be possible—I refer to Amendment No. 172—for information to be exchanged by electronic means between those concerned with criminal record certificates and the Criminal Records Agency. I beg to move.

Baroness Blatch

My Lords, I support what I believe is the intention of these amendments, which is to ensure that the Criminal Records Agency operates speedily and efficiently and that the information it passes on, in whatever form, is not misused. Given that in many cases criminal conviction and criminal record certificates will be applied for by those seeking employment, it is important that these applications are dealt with as quickly as possible.

This Government have done much to ensure that the service that government departments and agencies provide to the public is efficient, a principle that is enshrined in the Citizen's Charter. The Criminal Records Agency will, of course, be required to adhere to strict targets relating to its performance. In line with other agencies, these will be set out in its business plans and key performance indicators.

To lay down in statute what these time limits should be, as Amendments Nos. 131 and 137 do, is somewhat foolhardy given that we do not yet know exactly how big the agency will be, where it will be located, or exactly how many certificates it will be required to issue each year. Nor does it take account of situations when there may be justifiable delays in issuing a certificate. It is important to ensure that the information on the certificates is as accurate as possible and delays may occur, for example, if it proves necessary to go back to an applicant in order to ask him to provide further proof of identity.

These amendments do not specify what the sanction should be if the agency does not meet these time limits, but if it is intended that applicants should be entitled to compensation, even though they may not have suffered any loss or inconvenience, this would divert the agency's resources or lead to an increase in the cost of checks.

I would, however, like to assure the noble Lord, Lord McIntosh, that it should be possible to deal with applications for these checks, which will involve consulting only the Police National Computer and in some cases, the microfiche records held by the National Identification Service, and not local police records, very speedily indeed.

I also share the concern underlying Amendment No. 172. This amendment insists that all information about criminal records which is provided to registered bodies, whether transferred electronically or otherwise, should be covered by the code of practice. I am glad to say that it already is.

In addition, our proposal in this Bill to punish those who disclose information when they should not will apply to data passed electronically, and I can assure noble Lords that there are also substantial protections in the Data Protection Act about the electronic use and transfer of information.

Changing the Bill in this way may be counterproductive, as, specifying that certain types of information exchange must be covered by the code of practice, might suggest that others which do not appear on the face of the Bill fall outside its scope.

I am minded that the noble Lord did, as a preface to this amendment, say that it was only a probing amendment. I am advised that Phoenix is already in operation.

Lord McIntosh of Haringey

I am delighted to hear it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 132: After Clause 102, insert the following new clause— PROHIBITION ON ENFORCED SUBJECT ACCESS BY EMPLOYERS (".—(1) A person commits an offence if he requires an applicant for a paid position to supply him with information relating to any criminal convictions of the applicant (other than a criminal conviction certificate) supplied by a data user to the applicant as an individual exercising his entitlement under section 21 of the Data Protection Act 1984. (2) A person who is guilty of an offence under subsection (1) above shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale."). The noble Lord said: My Lords, this is a serious matter, and it is one which I did raise in discussion of what is now Clause 102 at Committee stage. The problem with the introduction of Clause 102 is that it is not in substitution for provisions of the Data Protection Act, but in addition to them. That is against the wishes, as I understand it, of the Government, certainly against the wishes of the Data Protection Registrar and of the House of Commons Home Affairs Committee. The White Paper, On the Record, which is the basis for this part of the legislation, refers to the practice of enforced subject access, where prospective employers who require information about criminal convictions and who have an interest in establishing whether individuals have a criminal record, often require them to make an application for information under the Data Protection Act. This practice, known as enforced subject access, is unsatisfactory—this is dealt with in paragraph 7 of the White Paper—because it elicits both spent and unspent convictions, which clearly undermines the Rehabilitation of Offenders Act.

The noble Lord said:

Paragraph 44 of the White Paper says that the Government's proposals will provide employers and others with a legitimate means of discovering about individuals' current convictions.

There will, in the Government's view, be no justification for the practice of enforced subject access discussed at paragraph 7 when the new arrangements are in place; and the Government therefore propose to consider what action should be taken to discourage or prevent enforced subject access to criminal records once the new arrangements are in place.

That is not new. In his 1989 report, the Data Protection Registrar referred to the practice and said: I do not believe that this is a proper use of the Act. I recommend that it should be prohibited with a criminal sanction".

The Home Affairs Select Committee of the other place made a similar point in 1990.

The amendment gives effect to the wishes of the Government, the Data Protection Registrar and the House of Commons Home Affairs Select Committee. It provides that it should be an offence, and subsection (2) provides for a penalty. I commend it to the House, and I beg to move.

Baroness Blatch

My Lords, the increasing practice of enforced subject access, which this amendment seeks to outlaw, is undesirable and is contrary to the spirit of the Data Protection Act 1984. It also undermines the Rehabilitation of Offenders Act. If it did not cease as a result of the introduction of criminal conviction certificates provided for in this Bill it would undermine the measures we introduce to protect information about spent convictions in this Bill.

We very much hope that the new criminal conviction certificates will give employers a legitimate means by which they can obtain confirmation of an applicant's unspent convictions and reduce the practice of enforced subject access. But I share the noble Lord's concerns that this may not eliminate the problem. We will think further about this problem and try to find a way of amending this Bill in order to outlaw this practice.

I am advised that the matter is not straightforward, but I promise that we shall attempt to address it in this Bill. In the light of that undertaking, I hope that the amendment will not be pressed.

Lord McIntosh of Haringey

My Lords, I can hardly resist that plea. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 103 [Criminal record certificates]:

Baroness Blatch moved Amendment No. 133: Page 41, line 17, leave out ("body") and insert ("person")

The noble Baroness said: My Lords, in speaking to Amendment No. 133, I should like to speak also to Amendments Nos. 134, 135, 136, 138, 142, 143, 144, 148, 149, 153, 159, 160, 161, 163, 164, 165, 166, 167 and 169.

These are the first of a number of Government amendments to Part V of the Bill. Before explaining their purpose I wish to make noble Lords aware that although we would have wished to bring forward all government amendments before the Bill left your Lordships' House, it is likely to be necessary to bring forward two further amendments when this Bill reaches the Commons. These are both issues which require further consideration in order to ensure that they can be properly addressed. The first will extend the provisions which the Bill contains to allow the Lord Chancellor access to checks for judicial appointments to other Ministers of the Crown. This will be necessary to cover Scotland but also judicial appointments which are the responsibility of other Ministers. However, there are certain other situations in which Ministers of the Crown might also require access to checks for which we would seek to make provision.

The second matter is a difficulty which has emerged in relation to regulatory bodies, in particular the financial regulators. There are circumstances in which, in order to fulfil their regulatory duties, it is necessary and is current practice for them to pass on criminal record information which has been provided to them. The Bill currently makes no provision for this. We need to consider ways in which it might be possible to amend the Bill so that its provisions do not stand in the way of necessary regulatory functions.

I now turn to the amendments. The purpose of these amendments is to permit office holders, such as the Director General of the Office of the National Lottery, to register for access to criminal record and enhanced criminal record certificates. As these office holders are not bodies corporate or incorporate, they would not be entitled to register unless the Bill is amended in this way. I beg to move.

On Question, amendment agreed to.

12.30 a.m.

Baroness Blatch moved Amendments Nos. 134 to 136 en bloc: Page 41, line 19, leave out ("a registered charity or appropriate body") and insert ("the registered person"). Page 41, line 25, leave out ("body") and insert ("person"). Page 41, line 26, leave out ("body") and insert ("person").

On Question, amendments agreed to.

[Amendment No. 137 not moved.]

Baroness Blatch moved Amendment No. 138: Page 41, line 32, leave out ("body which") and insert ("person who").

On Question, amendment agreed to.

Lord Lester of Herne Hill moved Amendment No. 139: Page 41, line 34, leave out ("and cautions").

The noble Lord said: My Lords, in speaking to Amendment No. 139, I would also like to speak to Amendments Nos. 141, 150 and 151. I apologise to the House for the fact that Amendment No. 140 makes no sense. It should not have been there. I have already informed the noble Baroness the Minister of that.

I make it clear that from these Benches we fully accept, as has been said by my noble friend, Lord Rodgers of Quarry Bank, the very important aims of Clauses 103 and 104.

The main purpose of these amendments is to ensure that only appropriate and necessary information about criminal records is given to potential employers, even in sensitive areas, for two reasons: first, to avoid frustrating important objectives of the criminal justice system; second, to avoid creating individual injustice and unfairness. Now that it is early morning, I am sorry to have to do this, but perhaps I may explain it more clearly to a House agog with interest in this matter.

Under Clauses 103 and 104 as they stand, details of cautions recorded in central police records and of spent convictions in cases of absolute and conditional discharges and of spent bind over orders, will all be disclosed in criminal record certificates and enhanced criminal record certificates. These certificates will be issued only in respect of sensitive occupations and offices, including health, pharmacy, the legal profession and senior managers in banking and financial services, to cite the Government's White Paper. It will cover a wide range of jobs in those sensitive areas.

I turn to Clause 103 to explain the position. As regards criminal record certificates under Clause 103 as it stands, the information which may be included in those certificates—for example, to employers in the legal profession, such as my own chambers—would include cautions. Clause 103 as it stands also covers absolute and conditional discharges and bind overs which would otherwise be spent under the Rehabilitation of Offenders Act.

These amendments seek to remove cautions from criminal record certificates, as well as to remove absolute and conditional discharges and bind overs spent after the appropriate rehabilitation period has expired. In the case of enhanced criminal record certificates under Clause 104, the amendments seek only to remove cautions from their ambit.

Perhaps I may briefly explain the position about cautions. The police have a wide and useful discretion to issue a formal caution. Guidance is contained in Home Office Circular 1994/18. Although records are kept of the administering of cautions, they are not a sentence and they do not rank as convictions. According to the Home Office national standards of cautioning, the purposes of a formal caution are threefold: to deal quickly and simply with less serious offenders, to divert them from unnecessary appearance in the criminal courts and to reduce the chances of their reoffending. A caution is not a form of sentence but it is a serious matter because it is recorded by the police and may influence them in deciding whether or not to prosecute someone who re-offends, and it may be cited in any subsequent court proceedings. Clause 103 as it stands would make a caution a very much more serious matter because it would become a part of someone's criminal record certificate to be passed on to potential employers and services in sensitive areas.

In the case of juveniles, there are strong policy reasons for delaying entry into the criminal justice system for as long as possible in the hope that the juvenile will grow out of his delinquent behaviour and never enter the system at all. That is why the Home Office circular refers to the presumption in favour of diverting juveniles from the courts. The Home Office rightly recognises that, as a general principle in the case of first-time juvenile offenders where the offence is not serious, it is unlikely that a prosecution will be a justifiable course. The choice will then lie between an informal word of warning and no further action; or, if the matter is too serious for that, a formal caution where the offence and the offender's record are not serious.

In the case of adults, there is no general presumption in favour of cautioning, but membership of certain vulnerable groups may point, according to the circular, to a sympathetic consideration of the case. The groups mentioned in the circular are the elderly or the infirm, young adults between 17 and 20 and those suffering from mental illness or impairment or suffering from severe physical illness. It is an essential requirement for a caution that the offender admits his or her guilt.

Let me say, after that rather long introduction, for which I apologise, that one concern about Clause 103 as it stands is that, by giving cautions wider circulation in criminal record certificates, it will become much more difficult to persuade minor juvenile and adult offenders, whether from vulnerable groups or otherwise, to admit their wrongdoing and accept the salutary warning given by a formal caution.

Another concern—I should be very grateful if these matters could be dealt with—is about the lack of effective procedural safeguards if cautions are to become a form of quasi-conviction whose disclosure to a potential employer may severely prejudice the individual's chances of obtaining employment. At present there must be evidence of the offender's guilt, the offender must admit his guilt, and the offender must understand the significance of a caution and give informed consent to the caution. But there is no obligation at present on the police to offer someone a right to legal representation before deciding whether to admit his guilt and accept a caution. It is clear from the Home Office circular that there are also concerns in the Home Office itself about the accuracy and consistency of the recording of cautions. I suggest that that is a further powerful reason for not permitting cautions to have wide currency as part of the individual's criminal record.

The existence of a procedure in Clause 106 for dealing with disputes about accuracy is useful so far as future recording and use are concerned. But that procedure will scarcely be effective in relation to stale and inconsistent records of, say, a 10 year-old minor shoplifting, road traffic or public order offence. It is also unfair that existing cautions will be given wide currency in sensitive areas—I stress this point because it seems a particularly unattractive position—even though they were administered at a time when those who admitted their guilt did so with no warning or expectation that such an admission of guilt would be permitted to be given wider currency and treated as relevant for employment purposes without any time limit or rehabilitation period.

If Clause 103 is agreed as it stands, it will in that way impose a retrospective penalty on those who admitted their guilt under the old system without a fair warning. I regard that as a particular vice and should be very grateful if that could be addressed.

I leave cautions to one side and turn to the absolute and conditional discharge. Where a court by which someone is convicted of an offence considers, having regard to the circumstances, including the nature of the offence and the character of the offender, that it is inexpedient to inflict punishment and that a probation order is not appropriate, the court may make an order discharging him absolutely; or if the court thinks fit, discharging him subject to a condition that he commits no offence during a period not exceeding three years from the date of the court's order.

An absolute discharge is appropriate where a person is convicted of an offence in circumstances where no moral blame attaches to him. An example is the case of the Queen against O'Toole in 1971 where an ambulance driver was driving an ambulance along a main road at about 50 to 60 miles an hour answering an emergency call. The vehicle's blue lights were flashing and the siren was sounding continuously. Another vehicle pulled across its path from a garage forecourt and a collision resulted. The Court of Appeal said it was very difficult to say there was any moral blame and substituted an absolute discharge for an order disqualifying the defendant from driving for 12 months.

A conditional discharge is appropriate in the case of an offender who might otherwise be suitable for probation but who is not in need of supervision by a probation officer, or where an offender who commits an offence which does not justify imposing a term of imprisonment has no resources with which to pay a fine.

Finally, there are bind-overs. Bind-overs can be part of a sentence following conviction for a minor offence, the rehabilitation period lasting until the date the bind-over ceases or one year whichever is longer. In addition, magistrates have the power to require a person who has not been charged with an offence to enter a recognisance to keep the peace or be of good behaviour. When that happens there is no necessary compliance with due process principles.

Liberty has drawn attention to a case where, for example, an elderly woman who had no legal representation was bound over for a potential breach of the peace as a result of a neighbour dispute. That type of bind-over information will be made available under an enhanced check. If the elderly lady were to volunteer at a local children's play group, that information would be highly prejudicial to her chances.

How are these matters dealt with under the Rehabilitation of Offenders Act? One has to follow that to see the impact of the Bill. That Act was designed to rehabilitate offenders who have not been reconvicted of any serious offence for periods of years and to penalise the unauthorised disclosure of their previous convictions. The 1974 Act provides for a rehabilitation period of six months from the date of conviction in the case of an order discharging a person absolutely for an offence and for a rehabilitation period of one year in respect of a conviction of someone who was conditionally discharged or placed on probation or bound over to keep the peace.

The practice direction on crime-spent convictions issued by the Court of Appeal in 1975 directs the courts to have regard to the spirit of the 1974 Act by refusing to allow any mention to be made of a spent conviction except where it is in the interests of justice to do so. Only a judge can authorise such a disclosure.

It is surely unjust and lacking any sense of proportion if absolute or conditional discharges and bind-overs which would otherwise be spent under the 1974 Act are now to be permitted to mar someone's prospects of obtaining particular employment without any time limit. I recognise that the situation is quite different in relation to enhanced criminal record certificates under Clause 104 dealing with paedophilia and matters of that kind. That is why my amendment would still permit even spent and minor sentences of that kind to be included and would remove only cautions for the reasons I have endeavoured to explain.

I apologise for the fact that I have taken so long to explain the matter but, if it serves no other purpose, it will at least enable noble Lords who are not familiar with this field to see the full picture as far as I understand it. I beg to move.

12.45 a.m.

Lord McIntosh of Haringey

My Lords, we had a most confusing debate on this subject in Committee, and I am still not convinced, even despite the lengthy introduction of the noble Lord, Lord Lester, that I am clear about all the issues to which the noble Lord referred. However, I want to support the part that I did understand about cautions.

As I understand the position, cautions are not covered by the Rehabilitation of Offenders Act 1974, and that is presumably because they are not considered important enough to be covered by the Act. If that is the case, since we have been worrying about a conflict between this Bill and the 1974 Act, surely the failsafe position would be that, if they are not important enough for that Act, they cannot really be important enough for this Bill.

There is also the worry that cautions can be accepted by people without any warning being given about the fact that they will appear on the record, most commonly by people who do not have legal representation. They accept a caution as a way of avoiding escalation of the confrontation with the police.

Another of my worries concerns the extent to which cautions are used for victimless crimes. I am talking in particular about consensual sexual acts which are offences that do not involve any victim. I would prefer in most ways to pursue the line which we pursued in Committee about the relevance of the information for which purpose the criminal record certificate is designed. However, failing that, it seems to me that some at least of the concerns expressed by the noble Lord, Lord Lester, have validity.

Baroness Blatch

My Lords, the effect of these amendments would be seriously to restrict the type of information that could be included on criminal record and enhanced criminal record certificates. I should remind the House that both of these certificates constitute the higher levels of check being proposed by the Bill and apply only to those occupations which are exceptions to the Rehabilitation of Offenders Act 1974.

Perhaps I may say in passing that the noble Lord referred to there being no victim in a consensual sexual act. I can think of occasions when there would be. Even in consensual sexual acts a very young boy might consent to sex with a much older person. I would regard the young boy as being very much a victim of that situation.

Lord McIntosh of Haringey

My Lords, the Minister will recognise that there is no such thing as consent by a young boy under the age of 16. That is an offence. It is not a consensual offence.

Baroness Blatch

My Lords, if they consented when they were over the age of consent it would not be an offence at all. We are talking about offences here. We are saying that if there was a young person who consented—there is nothing to stop a young person consenting—to sex with someone much older, that person could be cautioned. I am suggesting that there would be a victim in that situation.

For routine employment purposes, a criminal conviction certificate, which will only include details of unspent convictions, is perfectly sufficient. It is consistent with the spirit of the Rehabilitation of Offenders Act which allows for most convictions to become spent after a given period.

During our discussion in Committee noble Lords asked why absolute and conditional discharges can be included in criminal record and enhanced criminal record certificates. Both types of discharge are a disposal given by the court after a finding of guilt. As such they are covered by the provisions of the Rehabilitation of Offenders Act and, like the details of other convictions, should be included on these higher levels of certificate.

Amendment No. 139 would define "central records" as relating only to convictions. This would mean that details of cautions recorded centrally could not be included in criminal record or enhanced criminal record certificates. Amendments Nos. 140 and 141 deal specifically with criminal record certificates, and propose that they should only contain information on unspent convictions, including absolute and conditional discharges, bindovers and probation orders. It would not allow the certificates to contain information about spent convictions and cautions even though the groups who would be eligible for the certificates would only be those who are exceptions to the Rehabilitation of Offenders Act such as medical and legal professionals, public servants, and those who work with children and vulnerable adults; in all cases, professions where it is accepted that only the most trustworthy are appointed. Amendments Nos. 150 and 151 deal specifically with enhanced criminal record checks and propose that although they should contain details of spent, as well as unspent convictions, they should not include details of cautions. This is insufficient and will unnecessarily put at risk the most vulnerable. Only a very limited number of people will be eligible for enhanced criminal record checks. They will be restricted to those who work with children and will also be issued in connection with certain gaming and lottery licences. Following your Lordships' decision earlier this afternoon, it is our intention to extend the scope of these checks to cover those who work with vulnerable adults. In all cases it is necessary for an employer to be aware of an applicant's past convictions and cautions so that they can assess risk most accurately.

There may be some noble Lords who are persuaded that details of spent convictions should be contained on both of these types of certificate but not cautions. Spent convictions have all been tested by a court and may have been for relatively serious offences which could be relevant to the type of employment being sought. As the noble Lord, Lord Lester, explained during our consideration at Committee stage, cautions have not been tested by the courts and are not afforded the protection of the Rehabilitation of Offenders Act in the way that convictions are. I will address these points.

The cautions which are recorded on the police national computer are limited to those which have been given for reportable offences; that is to say, those which may attract a prison sentence. Because a formal police caution can only be issued if an individual admits committing an offence they cannot simply be regarded as insignificant matters in respect of those who apply for sensitive occupations. Although the Rehabilitation of Offenders Act does not apply to cautions, details of cautions will only be shown on criminal record and enhanced criminal record certificates, which would only be available for occupations and offices which are exceptions to that Act and which would also include details of spent convictions.

We are aware of the importance of providing safeguards in connection with information about spent convictions and cautions. The Rehabilitation of Offenders Act already provides some protection against the wrongful disclosure of information about spent convictions, and this Bill will also make provision for a new criminal offence if a member, officer, or employee of a registered body discloses information from a criminal record certificate other than in the course of his duties. This will apply equally to information on cautions and convictions.

As Minister with responsibility for the work of the Probation Service I assure the noble Lord, Lord Lester, that I attach great importance to the rehabilitation of ex-offenders, particularly if their offences were committed some years ago and are clearly no longer relevant to the type of work that is being sought. I am pleased to say the Government will publish a code of practice for registered bodies which will cover the way in which criminal record information should be handled. In addition we intend to publish guidance which will advise employers, for example, that they should take account of the time since the last offence, its relevance to the appointment in question and so on.

The noble Lord, Lord Lester, suggested that the inclusion of cautions makes them more serious, and referred to no obligation to legal representation, nor of recording them. Only reportable, broadly imprisonable offences, as I said, are recorded centrally, and cautions have only been recorded centrally since November 1995. On the point of no legal representation when the caution is administered, the person need not accept a caution and can do so having taken legal advice, or indeed without legal advice, if they so choose. In the light of that explanation, I hope that the noble Lord will not press his amendment.

Lord Lester of Herne Hill

My Lords, I am grateful to the Minister for that explanation although it has not really dealt with the main concerns that I articulated—probably because I spoke for too long and it may be that my concerns were not sufficiently brought out. Those concerns are fourfold. The first is that the effect of the measure as it stands will make it more difficult to persuade offenders to admit their wrongdoing and therefore accept the caution—a very undesirable consequence because I value the cautioning procedure. The second point is the lack of effective procedural safeguards that have obtained in the past, such as legal representation, when admissions of guilt have been obtained. My third concern is the lack of consistency and accuracy in the historic recording of cautions. I accept that that will be dealt with in the future but we are dealing with historic records. The fourth and final point is my concern about the retrospective penalty—that is, people are now to be treated as worse off than when they admitted their guilt for the purpose of the caution without having had fair warning that that would be the position.

All those concerns remain firmly with me and I am particularly concerned in the context of Clause 103 which deals with sensitive occupations, including my own. I cannot believe that the legal profession, or my chambers or those of the noble Lord, Lord Williams of Mostyn, would think it right that they should be provided with information about historic cautions because we belong to sensitive occupations within the White Paper. I do not know whether the noble Baroness or her colleagues have consulted members of the legal or health professions, but I very much hope that further thought will be given to these concerns because a great deal of what the Minister said showed sympathy with the need to ensure a proper system. There is no dispute between us about the importance of Clauses 103 and 104 as such. However, at this hour and with the matter being so complicated, I now beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 140 and 141 not moved.]

Clause 104 [Enhanced criminal record certificates]:

Baroness Blatch moved Amendments Nos. 142 to 144:

Page 42, line 2, leave out ("body") and insert ("person"). Page 42, line 4, leave out ("a registered charity or appropriate body") and insert ("the registered person"). Page 42, line 10, leave out ("body") and insert ("person").

The noble Baroness said: My Lords, these amendments were considered with Amendment No. 133. I beg to move.

On Question, amendments agreed to.

The Deputy Speaker

My Lords, I should point out that if Amendment No. 145 is agreed to, I cannot call Amendments Nos. 146 and 147 because of pre-emption.

Baroness Blatch moved Amendment No. 145: Page 42, line 11, leave out from ("that") to end of line 22 and insert ("person—

1. (a) in the course of considering the applicant's suitability for a position (whether paid or unpaid) within subsection (2A) or (2B), or
2. (b) for a purpose relating to any of the matters listed in subsection (2C).

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

1. (a) it is of a kind specified in regulations made by the Secretary of State, and
2. (b) it involves regularly caring for, training, supervising or being in sole charge of persons aged 18 or over.

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

1. (a) a certificate for the purposes of sections 19 or 27(1) or (5) of the Gaming Act 1968 (gaming);
2. (b) a certificate of consent for any purpose of Schedule 2 to that Act (licences);
3. (c) registration or certification in accordance with Schedule 1A, 2 or 2A to the Lotteries and Amusements Act 1976 (societies, schemes and lottery managers);
4. (d) a licence under section 5 or 6 of the National Lottery etc. Act 1993 (running or promoting lotteries).")

The noble Baroness said: My Lords, Amendment No. 145 is grouped with Amendments Nos. 177, 178 and 179 in my name and with Amendments Nos. 146, 147 and 152 in the name of my noble friend Lord Swinfen who communicated with me before he left the Chamber earlier this evening. The amendments are concerned with some of the groups eligible for enhanced criminal record checks when the measures in this Bill come into force.

First, part of amendment No. 145 deals with the gaming industry, and clarifies the sections in the Gaming Act 1968, the Lotteries and Amusements Act 1976 and the National Lotteries etc Act 1993 to which the provisions for enhanced criminal record checks will apply. This amendment also enables enhanced checks to be made where an application has been made by an individual who is applying for a licence, registration or certificate under these Acts, or who has been appointed as a director or employee of a body which already holds such a certificate. In effect, this means that not only will the existing directors and staff of a gaming body be eligible for enhanced checks at the time when a licence, registration or certificate is issued, but so will any others who take up post subsequently. This measure is supported by both the Gaming Board and the Office of the National Lottery and will help to clarify existing practice better to ensure that those who work in the gaming industry are fit to do so.

Secondly, the other part of Amendment No. 145 and Amendments Nos. 177, 178 and 179 enable the provisions for enhanced criminal record certificates to be extended by the Secretary of State by means of regulations. It is our intention to specify those who work with particularly vulnerable adults.

During our previous consideration of this issue I listened with great care to the forceful arguments put forward in particular by my noble friend Lord Swinfen and by the noble Lord, Lord Rix, who also communicated with me before he left the Chamber this evening. They have been doughty campaigners for vulnerable groups. In Committee I expressed much sympathy with the views of noble Lords who wished to see the scope of enhanced checks extended to cover vulnerable adults as well as children and undertook to come forward with an amendment which would seek to better protect those groups from those who abuse their positions of trust. The reason why this is being done by way of a statutory power rather than by stating on the face of the Bill which groups this measure will apply to is that we want to ensure that we get it right. I have sympathy with those charitable groups who work with vulnerable adults and the vulnerable generally who wish us to clarify which groups we specifically have in mind, but I am afraid that I am not yet in a position to do that. This is a complex matter. I assure noble Lords that we intend to consult widely with interested parties, including the charities involved, on the difficult question of which groups of vulnerable adults most need this extra protection. We believe that taking a power in this Bill to enable the provisions for enhanced checks to be extended is the right way forward. In the meantime, vulnerable groups will not be left exposed. As soon as the measures in the Bill come into force those who already work with vulnerable adults will be eligible for full criminal record checks which will include details of spent and unspent convictions and cautions, as will those who appoint, dismiss, manage or supervise such workers. I believe that this is a sensible measure which will allow us time to evaluate the effectiveness of enhanced criminal record checks before we widen their scope and assess carefully which groups of vulnerable adults most need this extra protection.

The noble Lord, Lord Rix, and my noble friend Lord Swinfen have told me that they accept the Government's amendments in this regard. Therefore, I apprehend that if my noble friend Lord Swinfen had been here he would not be pressing the amendments in his name on the Marshalled List.

1 a.m.

Lord McIntosh of Haringey

My Lord, we welcome the Government's recognition of the force of the arguments put forward at Committee stage. We need a good deal of faith in the Government's goodwill in this matter because the whole question of who are vulnerable adults is left to subsequent regulation. I have that faith, and I support the amendment.

On Question, amendment agreed to.

[Amendments Nos. 146 and 147 not moved.]

Baroness Blatch moved Amendments Nos. 148 and 149: Page 42, leave out line 44 and insert ("person."). Page 42, line 45, leave out ("body which") and insert ("person who").

On Question, amendments agreed to.

[Amendments Nos. 150 to 152 not moved.]

Clause 105 [Enhanced criminal record certificates: judicial appointments]:

Baroness Blatch moved Amendment No. 153: Page 43, line 18. leave out ("body") and insert ("person").

On Question, amendment agreed to.

Lord Rodgers of Quarry Bank moved Amendment No. 154: After Clause 105, insert the following new clause— ENHANCED CRIMINAL RECORD CERTIFICATES: EXEMPTION FROM FEE ("An applicant for a certificate under sections 104 and 105 shall be exempt from paying the fee required by section 104(1)(b) and section 105(1)(b) if he is—

1. (a) a childminder registered under the Children Act 1989;
2. (b) seeking registration as a childminder under the Children Act 1989:
3. (c) a member of a household where registered childminding takes place for whom a police check is required under the Children Act 1989.").

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

I can anticipate what the Minister will say about the cost of the Bill and of this amendment. I want to limit myself simply to saying that the organisations principally representing child minders are deeply concerned about the consequences of the Bill. I refer to the views of the National Childminding Association and the separate associations in Scotland and Northern Ireland. Together they represent over 100,000 child minders.

Those noble Lords who are close to these matters fully understand the very important role that registered child minders fulfil. Those who are responsible for them and anxious to represent them and to draw attention to their concerns take the following view of the provisions of the Bill as drafted.

First, the Bill will act as a disincentive to registration and increase the number of unregulated carers of young children, thus compromising their safety. Secondly, it will reduce the number of registered child minders, many of whom already find it difficult to make a living because of the high costs and expenses and low earnings, and therefore make good child care even more difficult to find. Thirdly, as a result of these factors it will threaten the good practice advances that have been made as a result of the Children Act 1989.

I do not want at this hour to discuss in detail the role of child minders or indeed how they are financed. I say only this to those who were not aware of it. Registered child minders in the United Kingdom are self-employed, independent child care providers. In that respect, detached as they are from the public service, they no doubt satisfy the wish of government to see more and more of our social provision out effectively to tender. They presently pay a fee of £10 to the local authority to register, and a further annual inspection fee of £7.50—although the Department of Health has just notified the association that these fees will increase by 25 per cent. from the beginning of next month.

The associations strongly believe that it is essential to have the checks provided for in this Bill. There is no argument at all about that. Indeed, as I have said before, there is no conflict of view in this House in respect of these clauses of the Bill. However, it is plain that if indeed some provision is not made to help child minders by avoiding the payment of these fees, then there is a threat to the whole profession as it has developed and to the safety of children in registered care.

I recognise that the Government will be very reluctant, and I know that the Minister will give no undertaking whatever this evening even to examine the amendment I am moving; however, I want to place it on record that I believe this is another respect in which, despite the long consultation period, which I fully recognise, the full consequences of the provisions in the Bill were not thought through. The fact that it has a number of virtues, particularly in Clauses 103 and 104, does not make it any less difficult for those whose job it will be to implement the provisions of the Bill.

I hope that the Minister will indicate her concern and sympathy for the child minders who are put in this position and indicate, if she will, how she believes they will get over the payment of a fee which, although it may seem small to noble Lords, can be large to those who are registered child minders and who are doing a first-rate job but who receive a very, very small reward for their efforts.

Baroness Blatch

My Lords, the Children Act 1989 does not require criminal record checks to be carried out on childminders. There is, however, a requirement for childminders, and other adults living on the same premises, to prove their fitness to be in the proximity of children. It has become the practice for local authorities to require applicants for registration as childminders, and other relevant adults, to undergo criminal record checks when they first apply for registration. At the moment, such checks are sought by local authorities and provided free of charge by the police.

Around 24,000 new childminders register each year in England (centralised figures are not held for the other parts of the UK) and would be eligible for checks. Records are not kept of how many other adults would be eligible for enhanced criminal record checks because they live in a household where registered childminding takes place. But it is reasonable to assume that this might be in the region of 24,000 to 48,000—that is one to two per household—which could be made up of the childminder's spouse or partner, and any children, relatives, or lodgers who are over 16 in England alone. The figure could, of course, be higher and it is those households which contain a higher than average number of adults which would be hardest hit by these proposals. I believe that the noble Lord used a figure of 100,000.

Currently, childminders also have to pay a small one-off fee to register and a further annual fee so that their premises, as well as the service they provide, can be inspected. These charges are being increased with effect from 1st February from £10 to £12.50 for the registration fee, which includes the first year's inspection, and from £7.50 to £10 for each subsequent inspection. These figures relate to childminders and sessional providers. The fees for providers of full day care are somewhat higher and will increase from £100 to £110 for registration and from £75 to £85 for annual inspections.

As your Lordships are aware, we propose to set up a criminal records agency to undertake the work necessary to implement the provisions in this part of the Bill. This will be viable only if it is self-financing. We intend that its costs would be met by charging each applicant for a certificate a modest and affordable fee. This issue was debated at length during Committee. As your Lordships know, the Bill as amended would now place a large extra burden of cost on either the Exchequer or those who are in paid employment in order to subsidise volunteers. I notice that that did not feature in the speech of the right honourable colleague of the noble Lord, Lord McIntosh, when he made his speech today, because the Labour Party has signed what amounts to a blank cheque on these matters.

In deciding on this course, the Government did, of course, look at whether certain groups should be exempted from paying for checks. But we did not consider that the relatively modest fees that are being proposed would be prohibitive to any of these groups. Childminders, and those adults who reside with them, would therefore be charged a fee in the region of £8 to £10 for the enhanced criminal record checks for which they would be eligible.

As noble Lords are aware, it would only be possible to offer certain groups free checks if an alternative means of funding could be provided. If the agency is to be self-financing, this would mean a substantial increase in the fees paid by other users of the agency, many of whom may be unemployed or on income support and who require a criminal convictions or criminal record certificate in order to find work, or employers or local authorities bearing the cost.

This measure would apply to new childminders of which around 24,000 register each year in England alone. Although records are not kept centrally, it is fair to estimate that in England each year there are around 24,000 to 48,000 adults who, because they live in the same household, would also be eligible for criminal record checks. If all these fees were to be waived the annual cost in England alone could be around £720,000. This is a significant sum. If the Government were to accept the principle that certain groups should have their fees waived I am sure that it would be possible to identify a considerable number of other groups, such as the unemployed or those otherwise on low incomes, who are equally, if not more, deserving of similar treatment. That is allied to the fact that any system of differential charges would be complex to administer and would add to the overall running costs of the agency and its financial viability.

The noble Lord would wish me to say this and I say it willingly: I assure the House that the Government fully recognise the important service which is provided by childminders. I agree that all care must be taken to ensure that those who look after or are in the proximity of young children are suitable and do not present a risk to the safety of those children. That is why we have consistently kept to a minimum fees which childminders pay for registration and inspection of premises. However, I cannot accept the principle that that group should be exempt from paying a modest fee for those checks to be carried out. In the light of what I have said, I hope that the noble Lord will not press the amendment.

1.15 a.m.

Lord Rodgers of Quarry Bank

My Lords, in her opening remarks the Minister said that the Children Act 1989 does not require checks. I hope that she did not imply—and her latter remarks suggest that she did not—that because the Children Act 1989 does not require checks, there is no need for checks to be made. It seems to me that that was an unfortunate way of expressing the matter because it suggests an area of discretion where discretion should not be exercised if it exists.

The Minister said that the fees are relatively modest. That seems to be so. But even relatively modest fees are a burden on those whose income from childminding is very limited; so I remain of the view that the full consequences of this Bill were not considered in advance.

The Minister referred to the agency being self-financing. I did not make that assumption, even though I might have been prepared to see some contribution to its total cost. I appreciate fully that legislation, including legislation of this kind, may need adjustments of one sort or another. But I hope very much, although I fear it will be the case, that there are no consequences for childminding of one kind or another. If there were fewer childminders of the quality required as a result of this Bill, it would be very unfortunate indeed. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 106 [Disputes about accuracy of certificates]:

[Amendments Nos. 155 and 156 not moved.]

Lord McIntosh of Haringey moved Amendment No. 157: After Clause 106, insert the following new clause— CRIMINAL RECORDS TRIBUNAL (".—(1) The Secretary of State shall establish a body to be known as the Criminal Records Tribunal ("the Tribunal") to hear an appeal from any individual applicant who disputes the accuracy or relevance of a new certificate which is issued to him under section 106 and which contains the same information as the original certificate. (2) The Tribunal may examine any information held on theapplicant and that contained on the certificate and assess the accuracy of the certificate. (3) A person who appeals to the Tribunal may be represented by a person of his choice. (4) The Tribunal shall give reasons for its decisions. (5) An appeal shall lie from a decision of the Tribunal to the High Court. (6) The Tribunal may award compensation to an individual applicant.").

The noble Lord said: My Lords, I must move this amendment because it is very important. It encapsulates the concerns which we have about the provisions in this part of the Bill. It is not that we are opposed to the part of the Bill; far from it. We have been supportive throughout of the need for the protection of children and, I am glad to say now, vulnerable adults from people who might abuse or harm them. The principle of criminal record certificates is as dear to our hearts as it is to that of the Government. But at the same time, in the interests both of justice and economy, as well as the protection of vulnerable children and adults, there must be provision that the accuracy and relevance of certificates should be safeguarded.

Clause 106 provides for a new certificate to be sought by somebody who has a doubt about the accuracy or relevance of the certificate which has originally been produced. That is fine. We do not propose any change to that. But if, at the end of that procedure, a new certificate has been produced and it contains the same information as the original certificate—in other words, when the subject is still dissatisfied as to its accuracy or relevance—then we think that there should be a criminal records tribunal which should examine the information and assess the accuracy of the certificate.

In subsections (3), (4), (5) and (6), that matter should be subject to legal representation; the tribunal should give reasons for its decisions; there should be the possibility of a further appeal to the High Court, if necessary; and there should be compensation awarded in appropriate cases.

We are not even anticipating that Clause 106 will be used very frequently. But, obviously, to the extent that the information provided by the criminal records agency will come from a limited number of sources— for example, from the police national computer and, if I may put it that way, very official local records— there should not be major problems of accuracy or relevance of the certificates in any but a small number of cases. But when that happens and when, despite the provisions of Clause 106, there is still a dispute, then, in our view, the interests of justice require that there should be a tribunal of the sort suggested in the amendment. I beg to move.

Lord Thomas of Gresford

My Lords, we support the amendment. If one looks at Clause 106(2) as drafted one sees that the Secretary of State has an absolute right to issue a new certificate without any further check upon its accuracy. With the certificates that will be issued under the legislation—indeed, the large number of certificates that it will be necessary for people to have—it is difficult to believe that they will always be accurate. If they are not accurate, what happens?

The formation of a criminal records tribunal as proposed in the amendment would give a proper means of redress. Such a tribunal could receive information and evidence and assess the accuracy of a certificate. Most importantly, it could also hear representations that are made and, finally, where a person has suffered damage of any sort, it could award compensation. Those are the necessary concomitants to the issuing of such certificates.

Baroness Blatch

My Lords, it would be wholly wrong if, for instance, someone's prospects of securing employment were disadvantaged by inaccurate information appearing on a certificate. The need to ensure that that does not happen is already recognised in Clause 106. If an individual wishes to query the accuracy of the information on a certificate he will be able to do so. A thorough check will be carried out and the complainant and, where applicable, the registered body will be issued with a new certificate if any inaccuracies are discovered. I believe that this is a sufficient system of appeal. The accuracy of information in central records can be checked by means of fingerprints and chief constables will be responsible for the accuracy of local information.

A criminal records tribunal along the lines proposed by the noble Lord and supported by the noble Lord, Lord Thomas, would be unwieldy, bureaucratic and, I have to say, would add yet more costs to the Bill. Those costs would have to be borne either by those who were unsuccessful in their appeals, or, if that was not feasible, by all other users of the agency or, indeed, taxpayers. I am sure that our proposals are a sufficient guard against injustices. Individuals will see the certificate in every case and will have an opportunity to query the accuracy. I believe that that is a sufficient safeguard.

Lord McIntosh of Haringey

I am afraid that I find the Minister's response quite unconvincing. Clause 106 has very limited scope. It has very limited detail and does not set out the nature of the further inquiry which would be carried on. All the Minister is saying in response is that if, for example, there has been a mistake in transcription from the records, that would be corrected in the new certificate. What we are saying is that the possibility of serious injustice from wrong material being included on whatever source material is being used—there being no possibility whatever of challenge to that—is a danger not only to the liberty of the applicant but also, in the end, could result in jobs working with young or vulnerable adults not being filled because no suitable person was available. I do not find that argument satisfactory and I shall seek the opinion of the House on this amendment.

Lord Strathclyde

I suspect that the noble Lord will find that we do not have a House and are therefore unable to complete a Division; we may find that that is not the case. If we do not have a House, if the noble Lord continues to press his amendment, we shall have to return at another date in order to complete the Bill at a time that may not be convenient to him. Having said that, he may wish to reconsider whether or not he wishes to push this amendment to a vote.

Lord McIntosh of Haringey

I have three things to say about that. First, the Chief Whip cannot say that he has not been warned that we were dissatisfied with the timetable which has been imposed on this Report stage.

Secondly, it would not be my intention to ask those who agree with me to abstain from voting in order not to achieve a House; that is not the purpose of my seeking the opinion of the House. My purpose is to make sure, and make it absolutely plain, that there is proper consideration of all parts of this Bill at a proper time. It is the Government's responsibility to provide a House for government legislation. I shall not seek to frustrate it by refraining from voting or asking my friends to refrain from voting.

The final point I want to make to the Government Chief Whip is that the normal procedure under these circumstances is for the remainder of the business—it is a very small amount—to take place at the beginning of the next business day. If that happened, I would have no objection and there would be no delay—and need be no delay—whatsoever to the passage of the Bill through this House.

1.29 a.m.

On Question, Whether Amendment No. 157 shall be agreed to?

Their Lordships divided:

1.34 am.

The Deputy Speaker

My Lords, as it appears that fewer than 30 Lords have voted, in accordance with Standing Order No. 55, I declare the Question not decided, and further proceedings on the Bill stand adjourned.

House adjourned at twenty-five minutes before two o'clock.