Lords Sitting of 28 January 1997

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

Vehicle Registration System
Lord Campbell of Croy Lord Campbell of Croy asked Her Majesty's Government:
When the consultation period on a future system of registration for motor vehicles and associated identifying plates is likely to be concluded.
The Parliamentary Under-Secretary of State, Department of Transport (Viscount Goschen): My Lords, the consultation period ends on 21st March this year.
Lord Campbell of Croy: My Lords, I am grateful to my noble friend for his reply. As a new system will be needed by the year 2004, when the usable alphabet will have been exhausted, is there a programme in place for decisions and adequate time for preparations bearing in mind that any changes will cost money and that manufacturers and traders are hoping to receive as much notice as possible?
Viscount Goschen: My Lords, clearly it is important to give the maximum possible period of notice. The consultation exercise was embarked on following representations from the motor industry which was concerned about the peak in sales of motor cars and new registrations around August. We certainly shall want to give the maximum possible notice.
Lord Brabazon of Tara: My Lords, does my noble friend agree that the sale of personalised number plates has been an enormous success and is popular with the public? How much money has been raised by the Government during the nine or 10 years that the system has been in action?
Viscount Goschen: My Lords, it clearly has been a great success. The demand for cherished or personalised numbers has exceeded all expectations. I understand that over £240 million has been received as a result of sales of such numbers.
Lord Clinton-Davis: My Lords, does the Minister agree that legislative action on this issue is certainly overdue? Does he also agree that there are two essential common denominators here: first, the one he identified, namely, that a quarter of all car sales are crammed into the month of August, which is wholly unsatisfactory; and, secondly, that any new form of number plates must be easy to remember to help in the fight against crime and to ensure that costs for car buyers are cut as well as being in the interests of the motor industry as a whole?
Viscount Goschen: My Lords, I agree with the noble Lord. Certainly, the month of August is heavily biased in terms of the number of car sales that occur then. For example, in August 1996 541, 000 cars out of a total of 2.4 million were registered. That causes major problems for the motor industry, and that is why we have embarked on the consultation. Certainly, having a system which enables people to remember car number plates aids the police considerably. We also want to ensure that costs are kept low.
Lord Brougham and Vaux: My Lords, will my noble friend and his colleagues in the department consider that although number plates should be easily remembered, car crime in England is high? The noble Lord, Lord Clinton-Davis, referred to crime. Will the Government consider the Swedish integrated information system which is readily accessible to their police and enables them to check whether a car has road tax and an MoT certificate, and whether it is insured?
Viscount Goschen: My Lords, that would appear to be a valuable response to the consultation exercise. It sounds as if people will send in details of that system, and it will be taken into account during our analysis of the responses.
Lord Campbell of Croy: My Lords, is not an important consideration the one already mentioned; namely, to try to avoid the inefficient concentration of sales in one short period of the year? In future will more emphasis be given in the registration figures to the area where a vehicle is first registered rather than its age, which is not really relevant?
Viscount Goschen: My Lords, we have covered the point with regard to the sales of motor cars throughout the calendar year. There is already a geographical identifier within the registration mark. The question of a further area mark is one of the options that has been identified and on which we are consulting.

Gurkhas: Accompanied Service in the UK
2.42 p.m.
Lord Boyd-Carpenter Lord Boyd-Carpenter asked Her Majesty's Government:
Whether they have yet come to a decision on the provision of appropriate accommodation for the families of Gurkha personnel posted for service in the United Kingdom.
The Parliamentary Under-Secretary of State, Ministry of Defence (Earl Howe): My Lords, as I explained on 14th January, and confirmed on 22nd January, I expect a decision on the review of Gurkha terms and conditions of service, including the issue of married, accompanied service in the United Kingdom, to be announced next month.
Lord Boyd-Carpenter: My Lords, can my noble friend give any indication as to whether that decision

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which is to be announced next week will be one that meets the ordinary ideas of decency and of proper provision for the dependants of these first-class soldiers?
Earl Howe: My Lords, my noble friend can be confident that the Government will want to continue to treat the Gurkhas generously. However, as I am sure he will appreciate, the last thing we wish to do is to disadvantage Gurkha soldiers and their families by not fully thinking through any changes to terms and conditions of service that we may be considering. A number of government departments are involved. The matter will inevitably take a little while longer.
Lord Dean of Beswick: My Lords, will the Minister enlighten the House as to what the Government consider to be appropriate? If there were some area of disagreement between families—the Minister will know that in housing matters that is bound to happen—can there be negotiations with those people who are to be rehoused so that their feelings about the matter may be considered as far as possible?
Earl Howe: My Lords, as regards the first part of the noble Lord's question, I ask him to wait until any announcement we make. He can judge the content of the announcement at the time.
On his second point, as a matter of general policy on the part of the Ministry of Defence, of course we try to take account of the concerns of individual families as far as we can when there is an entitlement to a married quarter.

Chinook Helicopter Crash Verdict
2.44 p.m.
Lord Chalfont Lord Chalfont asked Her Majesty's Government:
Whether they are still satisfied with the verdict reached by the RAF board of inquiry into the crash of the Chinook helicopter in Scotland on 2nd June 1994.
Earl Howe: My Lords, an extremely thorough investigation into this tragic accident was carried out, including RAF experts with first-hand experience of Chinooks and civilian specialists from the Air Accidents Investigation Branch. They concluded that the accident was caused by the two pilots, who wrongly continued to fly their aircraft towards the high ground of the Mull of Kintyre below a safe altitude in unsuitable weather conditions. This constituted a failure in their duty and regrettably, therefore, it was concluded that both pilots had been negligent. No new evidence has emerged to cause us to doubt the accuracy of this conclusion.
Lord Chalfont: My Lords, I thank the Minister for that reply. However, is he aware that a well researched television programme on Channel 4 last night cast considerable doubt on the justification for a verdict which found two young officers of considerable experience guilty of gross negligence. Can he confirm that it is one of the rules in Royal Air Force inquiries of
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this kind that it is only when there is absolutely no doubt that dead air crew should be found guilty of negligence? Can he state categorically that there is no doubt whatsoever in this case? If not, will he undertake to reopen the inquiry and review all the evidence?
Earl Howe: My Lords, I am aware of the programme to which the noble Lord refers. It made a number of unsubstantiated allegations. The RAF's inquiry into the cause of the accident was scrupulous and was carried out in accordance with agreed procedures, including the attribution of negligence. In forming their final decision on the cause, Air Vice Marshal Day and Air Vice Marshal Sir William Wratten judged that the two pilots did not exercise appropriate care or judgment and that their actions led directly to the crash. Such actions, they concluded, amounted to gross negligence. No new evidence has come to light which might cast doubt on that decision.
Lord Merlyn-Rees: My Lords, if there were to be a further inquiry on this matter, what procedures exist within the Royal Air Force to allow that to happen? On whose authority could a further inquiry be instigated?
Earl Howe: My Lords, if new evidence emerged it would of course be open to the Royal Air Force to reopen the board of inquiry. However, as I said, there is as yet no such further evidence and, therefore, no reason in the RAF's mind at least to take that course.
Lord Williams of Elvel: My Lords, will the Minister give the House the terms of experience of the two pilots accused of being grossly negligent? Were they young pilots with no experience of flying Chinooks or pilots of experience? If they were pilots of experience, is it not rather odd that both of them were negligent at the same time?
Earl Howe: My Lords, as the noble Lord will know, a finding of negligence is never reached lightly. The initial batch of training crews, who were all experienced, qualified helicopter instructors, was converted on to the Chinook Mk 2 by the design authority. These crews subsequently designed the in-service conversion course and instructed on it. All crews who converted were experienced on the Chinook and so the conversion course concentrated on technical differences between the Mk 1 and Mk 2. The course lasted two working weeks. Both pilots had completed that course and were therefore qualified to fly the Chinook Mk 2.
Lord Renfrew of Kaimsthorn: My Lords, will my noble friend remind me whether a black box recorder was carried by the helicopter? I think that I have read that that may not have been the case. If I am correct, can he remind us whether a civilian helicopter of the same mark would have had to carry a black box recorder when flying for commercial purposes?
Earl Howe: My Lords, I shall have to take advice on the question of a civilian helicopter. However, I can tell my noble friend that the decision was taken before the

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Mull of Kintyre Chinook accident to install accident data recorders and cockpit voice recorders as part of the helicopter usage monitoring system. This equipment will be fitted into the Chinook fleet from August 1998.
The Earl of Kimberley: My Lords, whether or not those two unfortunate pilots were guilty of gross negligence, who was originally responsible for putting so many VIP experts on security in one helicopter?
Earl Howe: My Lords, that question has been asked many times. We have reviewed the position. However, despite this very tragic accident, we reached the conclusion that the decision was not necessarily unsound and that in future probably a similar decision would be taken.
Lord Chalfont: My Lords, will the Minister confirm that at an inquiry held in Scotland under the procedure for inquiry into fatal accidents a Scottish sheriff took evidence widely, including from those who had given evidence at the RAF board of inquiry? Will he confirm two further matters: first, that the president of the RAF board of inquiry said that he was not prepared to come to the conclusion that the pilots had been negligent; and, secondly, that the sheriff in this case said that there was no evidence whatsoever to support this verdict?
Earl Howe: My Lords, the key point is this. The fatal accident inquiry in Scotland did not uncover any evidence that was not known to the Royal Air Force. Neither the sheriff's determination nor his personal views alter the conclusions of the RAF inquiry which, as I said, was conducted by experts with first-hand experience of Chinooks. It was the duty of the senior officers involved in the board of inquiry to come to a conclusion. They did so with great regret having examined all the evidence placed before them.

Rwanda: Arms Allegations
2.51 p.m.
Lord Williams of Elvel Lord Williams of Elvel asked Her Majesty's Government:
Whether arms of British manufacture have been sold to any of the participants in the massacre in Rwanda and, if so, on whose authority.
The Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey): My Lords, in the light of media reports in November 1996, Her Majesty's Customs and Excise are seeking to establish whether there have been any illegal acts coming within UK jurisdiction. There is no suggestion that arms were exported from the UK by the company at the centre of recent allegations. The allegations suggest that arms were supplied from third countries.
Lord Williams of Elvel: My Lords, I am grateful to the noble Baroness for that Answer. We understand that there was a failure to implement the United Nations embargo on sales of arms to Rwanda in Crown
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dependencies and dependent territories. Indeed, the Foreign Secretary announced that. If Customs are examining the question of British manufactured arms, can they be sure that those arms were not diverted from other destinations by those people who operated in the Isle of Man, Guernsey, or wherever it was, and sent off to Rwanda? Can that be established for certainty?
Baroness Chalker of Wallasey: My Lords, until the investigations are complete I cannot give the noble Lord a complete answer. From my discussions with Her Majesty's Customs and Excise I know that they will examine all possible avenues by which arms, wherever they went from and whatever route was used, may have ended up in Rwanda by entering from a country neighbouring Rwanda. That is the essential point that the question revealed in paragraph 41 of the interdepartmental committee report; namely, whether existing orders prohibit deliveries to countries neighbouring Rwanda for the purpose of use in Rwanda as UN Security Council resolutions require. I assure the noble Lord that the interdepartmental committee has produced no evidence that deficiencies in the system resulted in the export of arms from the UK to the Rwandan Hutu rebels who fled following the 1994 genocide.
The Viscount of Falkland: My Lords, does the Minister agree that one of the problems particularly in relation to Africa is the export, not of arms as such, but of seemingly innocuous items which can be used as instruments of repression? The most obvious example is the machete, which can be described as an agricultural implement, and objects of that kind. Does she accept that one has to be very much on one's guard against that?
Baroness Chalker of Wallasey: My Lords, the noble Viscount is right. However, in my years of experience in Africa I have seen many home-produced machetes which are just as lethal as any weapons that might enter from outside for use by warring tribesmen. They are sometimes very good at producing their own implements. If nothing else is available, they will use those.
Lord Williams of Elvel: My Lords, can the Minister give the House any indication as to when the Customs and Excise inquiry will be completed and whether an announcement will be made in the House?
Baroness Chalker of Wallasey: My Lords, I wish I could, since we could then bring this whole matter to a clear end. I cannot do so at the moment. If I have any further knowledge, I will write to the noble Lord.
Lord Monkswell: My Lords, do the Government have any evidence that arms shipped by the company in question prior to the United Nations embargo were shipped from the United Kingdom but after that were shipped via one of the dependent territories which escaped the legal net?
Baroness Chalker of Wallasey: My Lords, I cannot give the noble Lord a definitive answer. Clearly, all the evidence is not yet to hand. The whole matter has not yet

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been fully investigated. I repeat that there is no evidence that deficiencies in the system resulted in the export of arms from the UK to the Rwandan Hutus by whatever means. I am committed to making sure that the whole matter is fully cleared up. I am glad to say that we are working in co-operation with the UN International Commission of Inquiry. The chairman of the commission wrote to the Government on 17th December expressing complete satisfaction with the co-operation that it had received from the UK. I will place a copy of the letter in the Library.
Lord Dean of Beswick: My Lords, will the Minister give an undertaking that if the final report shows that loopholes have been exploited by people taking arms into that country the Government will do all they can to see that those loopholes are closed as quickly as possible?
Baroness Chalker of Wallasey: My Lords, I think that that was done in the response to the Question that my right honourable friend the Foreign Secretary and I answered in our respective Houses on 21st January. The reply appeared at cols. WA 50 and WA 51 of Hansard. The Government have endorsed the report of the interdepartmental committee. There is a copy of the report in both Libraries. We are implementing all its recommendations.

Justices of the Peace Bill [H.L.]
2.57 p.m.
The Lord Chancellor (Lord Mackay of Clashfern):My Lords, I beg to introduce a Bill to consolidate the Justices of the Peace Act 1979 and provisions of Part IV of the Police and Magistrates' Courts Act 1994. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time.—(The Lord Chancellor.)
On Question, Bill read a first time, and to be printed.

Business of the House: Debates, 3rd February
The Lord Privy Seal (Viscount Cranborne): My Lords, I beg to move the Motion standing in my name on the Order Paper.
The effect of this Motion will be that the Motions of the noble Lord, Lord Carter, which currently appear at the bottom of the Order Paper will be taken first on Monday, 3rd February. This follows agreement with the usual channels.
Moved, That Standing Order 38(4) (Arrangement of the Order Paper) be dispensed with on Monday next to allow the Motions standing in the name of the Lord Carter to be taken first.—(Viscount Cranborne.)
On Question, Motion agreed to.

Town and Country Planning (Scotland) Bill [H.L.]
Read a third time, an amendment (privilege) made; Bill passed, and sent to the Commons.
Planning (Listed Buildings and Conservation Areas) (Scotland) Bill [H.L.]
Read a third time, an amendment (privilege) made; Bill passed, and sent to the Commons.
Planning (Hazardous Substances) (Scotland) Bill [H.L.]
Read a third time, and passed, and sent to the Commons.
Planning (Consequential Provisions) (Scotland) Bill [H.L.]
Read a third time, and passed, and sent to the Commons.

Police Bill [H.L.]
3 p.m.
The Minister of State, Home Office (Baroness Blatch): My Lords, I beg to move that the Bill be now read a third time.
Moved, That the Bill be now read a third time.—(Baroness Blatch.)
Lord McIntosh of Haringey: My Lords, I gave the Minister notice that I should have to intervene at this stage of the proceedings. The House will be aware that conflicting, shall I say incompatible, amendments were passed at Report stage on 20th January. Although, of course, the Government were not responsible for the position and would much rather it had not happened, the fact is that the Bill left its Report stage in an imperfect form. It was very much better in principle than the Bill which was originally introduced, but it was technically defective.
I should have thought that, in the eight days which have passed since the Report stage, the Government would have come to some conclusion about the amendments and been able to inform the House what conclusions they had reached. It seems to me and a number of noble Lords who are concerned with the integrity of the House as a revising Chamber that the House has the right to be taken into the Government's confidence on the matter. We have the right to know what the Government intend to do about the amendments, where they intend that further amendments should take place and what they should be.

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I am not speaking to the Minister personally, but I am disappointed that the Government collectively have not felt it possible to treat this House with the seriousness which it deserves.
Lord Callaghan of Cardiff: My Lords, are we not to hear any response from the Government to the point before we proceed to consideration of amendments on Third Reading? Are we to hear whether there will be a statement from Ministers about the manner in which they intend to treat the amendments? If we are, I shall immediately resume my seat. If not, I can only say, without disrespect, that I would regard it as a discourtesy to the House unless we are given a clear indication as to what the Government intend to do about the situation.
It is not the Opposition's Bill, nor that of the Liberal Democrats, it is the Government's Bill. They have a responsibility to ensure that it is put in a proper way and a responsibility for accounting to this House. Despite the noble Baroness's apparent amusement, it is still the Bill of this House. It is treating us with a certain amount of disrespect if we do not hear from the Government what they intend to do about it. It is all very well to leave it to another place, as I assume they intend to do. That is within the Government's rights and I do not disagree with it. On the other hand, as long as the Bill remains the property of this House it is to this House that the Government's comments should be addressed. In view of the clear and decisive majority that was achieved for the amendments, it is to this House that the Government should be accountable.
I am sorry that I am amusing the noble Baroness with these comments but I regard it as a serious and important matter. Here are a Government at the fag end of their life, without a majority in the House. We are unable to say whether the Government will be able to get the Bill through in another place. That is not a matter for us, but at least they could say what they intend to do here. It is to this House that the Government are accountable.
I must say that I would have expected something different in these circumstances, in accordance with conventions and precedents. I well recall what happened to governments that ran out of majorities in the past, and I remember very well the courtesy and consideration with which the Opposition were then treated. There was consultation with the Opposition on Bills that had reached an appropriate stage when there were differences that needed to be cleared up.
I can only say that unless we hear more from the Government, I shall be reinforced in my conviction that this is an arrogant Government. I do not accuse Ministers here of that because they are apparently merely passing on what they hear from Mr. Howard and, if he wishes to say anything, exactly what he wishes to say. However, increasingly over the past 18 years the Government have behaved in an arrogant manner to most people who are concerned with public affairs, whether it be the Civil Service or either House. I know that we have had to continue to groan under this yoke, but I trust that that will soon be brought to an end.
Baroness Blatch: My Lords, perhaps I may say to the House that it was out of courtesy and not discourtesy that I did not rise to speak, because I was warned in advance that the noble Lord, Lord Callaghan, would wish to have his say on the matter. I thought it would be helpful for the House to hear what he had to say first. Having heard it, however, I think it was very precipitate and ungenerous concerning the way in which we have behaved in this House. I believe that the noble Lord, Lord Rodgers, may also wish to have his say. It is important for me to hear what noble Lords have to say on the Bill and I shall reply in full to the challenge that the noble Lord has set down for me.
Lord Rodgers of Quarry Bank: My Lords, far be it from me to refuse an invitation of such generosity from the Minister. They are rare and the opportunity should be seized with a degree of hesitation but without delay.
I was interested in what the noble Lord, Lord McIntosh, said—that the Bill was better in principle for having been discussed in your Lordships' House. He said that it was better in principle, but he did not say that it was better in principle than the Bill he first happily embraced. I make that point in the gentlest possible way.
This is a serious matter and I shall not detain noble Lords long. I had hoped that by now the Home Secretary would have felt able to announce that he had accepted your Lordships' decision on the two most important amendments and was dwelling on how best they might be implemented. In so far as they were contradictory, we hoped he would be able to say what better way there was of solving the problem. It is disappointing if that announcement is not to be made in this House. But 1 shall not pursue the matter, except to say that I hope that the Home Secretary will make the announcement soon.
Baroness Blatch: My Lords, it was not entirely unexpected that the noble Lord came prepared to say something this afternoon on the matter. In regard to the noble Lords, Lord Callaghan and Lord Rodgers, who referred to the "decision" of this House, I would rather refer to the "indecision" of the House, because that is where we are at the moment.
Also I am somewhat surprised at what noble Lords have said on the matter. This House has had its say on intrusive surveillance, albeit a somewhat schizophrenic one. It has left us with a Bill containing an amalgam of three propositions: the Government's, the Liberal Party's and the Labour Party's. The noble Lords, Lord Rodgers and Lord Callaghan, must accept some responsibility in that, along with many other noble Lords, they quite deliberately voted for the two amendments, knowing what the effect would be. I exonerate the noble Lord, Lord McIntosh, from that because he voted for only one option. We were all privy to his attempts to persuade his Benches not to vote for the Liberal amendment. We heard the exhortations from him, rather like a manic conductor of an orchestra, but they fell on deaf ears. A large number of noble Lords on his Benches went outside and pointed in two directions at the same time.
No noble Lord has sought to put down an amendment today in order to press one proposal or another. Therefore, the Bill will leave this House for another

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place with a mixed message. The Government are clearly concerned. If the judiciary is to become involved, or if different arrangements than those proposed by the Government are to be brought in, discussions must range much wider than with political parties, to include the police and the judiciary, to name but a few interested parties. That could not have been completed by Third Reading.
The Government stand ready to consider all proposals from all political parties and from any other quarter. My understanding is that the Labour Party is already beginning to proffer ideas about a way forward. I have a letter from no less a person than my right honourable friend the Prime Minister. He wrote to the Leader of the Liberal Party saying that he welcomed constructive suggestions and proposals for a way forward from Alan Beith in another place and the noble Lord, Lord Rodgers, in this place.
This Bill has all of its stages before it in another place and no doubt the House of Lords will have expressed its concern—that will not go unrecorded by another place—that this House is undecided as to a way forward. It must be for another place, therefore, to resolve this issue. Any proposals determined by the other place will of course come back to your Lordships. We have not had the last word on this and will have a further opportunity to consider the issue of authorising intrusive surveillance.
I cannot accept that any further delay by this House will serve any useful purpose. I am just tempted to think that this discussion, which is delaying our proceedings on the Bill this afternoon, is not entirely unconnected with the letter sent out by the Opposition Chief Whip, which we all read with great interest in last week's Sunday Express. Perhaps I may suggest that we press on with the Third Reading in the normal way.
Lord McIntosh of Haringey: My Lords, before the Minister sits down, let me say that she cannot quite get away with that. The Minister was referring to letters which she does not read; she referred to discussions as though everybody knew about them when they clearly do not and the only evidence is from the press. What this House wants to know—I thought my noble friend Lord Callaghan made that clear—is whether the Government accept the inevitability of prior judicial authorisation of intrusive surveillance. That is what the House wants to know. That is what the House voted for.
Baroness Blatch: My Lords, I thought I had made it clear that that matter remains unresolved. What we know at this moment is that this House has two views about it.
Noble Lords: No, no!
Baroness Blatch: My Lords, yes. This House decided two different proposals. In the Bill as it stands for Third Reading there is still an amalgam of the Government's proposals, the Liberal proposals and the Labour proposals.
Lord Richard: My Lords—
Baroness Blatch: My Lords, perhaps the noble Lord, Lord Richard, will contain himself for a moment. Discussions about a way forward continue. The Opposition Leader in another place—as the noble Lord, Lord McIntosh, knows—is already exercised about a way forward; the Government are clearly exercised about a way forward. The noble Lord, Lord Rodgers, and his party, contacted the Home Office and received a reply that if they wished to make proposals for a way forward, they would be considered seriously.
I have made it clear that discussions in relation to a way forward, if there is to be an alternative to the proposals set down by the Government, must produce provisions that go wider in terms of their workability and practicability and must not inhibit the effective work of the police to investigate serious crime. That issue remains unresolved and it is not possible for me at this moment to say what the resolution of it is.
Lord Richard: My Lords, perhaps I can press the Minister a little further. She is right to say that the alternative must be practicable and workable; I agree with that. But this House decided on two amendments last week to the effect that it was in favour of the principle of prior judicial authorisation. Do the Government accept that principle? Do they not accept that principle? Or cannot the Government decide whether they should accept it?
Baroness Blatch: My Lords, I apologise to the rest of your Lordships who are being delayed from getting on with the Bill. Perhaps I can say to the noble Lord, Lord Richard, that nobody is in any doubt about the views of the House of Lords. The other place is an elected Chamber and I do not wish to pre-empt the discussions that will take place there, nor do I wish to pre-empt the discussions and the consideration that the Government are giving to the matter. We have not yet conceded that prior authorisation is the way forward. What is being discussed at the moment is that this House is sending a Bill that is unclear about a way forward on this matter.
On Question, Bill read a third time.
3.15 p.m.
Clause 92 [Authorisations to interfere with property etc.]:
Lord McIntosh Lord McIntosh moved Amendment No. 1:
Page 35, line 12. at end insert—
("() Where the action taken would involve an entry on or interference with property or with wireless telegraphy at—

(a) premises occupied by a professional legal adviser; or

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

any person who is required to authorise or approve action under this Part 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.

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() In this section—

(a) so far as it extends to England and Wales, 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; and

(b) so far as it extends to Scotland, the term "subject to legal privilege" means—

(i) communications between a professional legal adviser and his client; or

(ii) communications with or in contemplation of legal proceedings and for the purpose of those proceedings being communications which would in legal proceedings be protected from disclosure by virtue of any rule of law relating to the confidentiality of communications.").

The noble Lord said: My Lords, after that dreadful delay of 15 minutes, for which I suppose I am expected to apologise, I turn to the business on the Marshalled List. In rising to move Amendment No. 1, I should like to speak also to Amendment No. 2.
These amendments have been before your Lordships in different forms both at Committee stage and at Report. However, they remain unresolved. They are matters of the utmost importance not only for the preservation of civil liberties, but also for the independence of the legal system in this country.
At the Committee stage I quoted the Lord Chief Justice who said, in the Appellate Committee of your Lordships' House on 25th October 1995,
"Legal professional privilege is thus much more than an ordinary rule for evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests. It is in the wider interests of all those hereafter who might otherwise be deterred from telling the whole truth to their solicitors. For this reason I am of the opinion that no exception should be allowed to the absolute nature of legal professional privilege, once established".—[Official Report, 26/11/96; col. 204.]
I return to this issue encouraged by the course of the debate—other than the government replies—both in Committee and at Report stage. I return to it in the light of amendments carried at Report stage because, having read carefully the government amendments and read again the effect of our amendments, it is still the case—I believe Government Ministers have confirmed this—that under this Bill it would be legal for intrusive surveillance (bugging) to take place in lawyers' offices. The same is true for the other accepted communications which are covered by Amendment No. 2 and which are defined in Section 11 of the Police and Criminal Evidence Act 1984.
At Report stage we had distinguished contributions from the noble Lord, Lord Thomas of Gresford, the noble and learned Lord, Lord Browne-Wilkinson, and from the noble Lord, Lord Hutchinson of Lullington, who reminded the House that legal privilege is not privilege for lawyers; it is privilege for their clients who may or may not be innocent but who are still entitled to the protection of the law.
In her reply at Report stage, the Minister agreed that it was wrong to bug such conversations. But she went on to include,
"conversations … on matters such as a client's defence with the intention of frustrating that defence";—[Official Report, 20/1/97; col. 465.]
In other words, the Minister restricted her recognition and understanding of the legality of bugging in defiance of legal professional privilege to specific items of information and with specific motivation.
The noble and learned Lord, Lord Browne-Wilkinson, in a valuable intervention, reminded the Minister that of its nature bugging surveillance is indiscriminate. When the machine is switched on one hears everything that happens and it is not enough to say that legal professional privilege is unlawful or wrong under very restricted circumstances, either as to the nature of the intervention or as to what it is intended to obtain from it.
The Government have simply not addressed the issue which we tabled in our improved amendments at Report stage. What we recognised in our amendments and what we recognise in the amendments before the House today is that there must be a special provision for those attempts at a cover-up of legal communications when they are themselves an abuse of legal professional privilege. That is what is provided for in the very moderate terms of these amendments.
We would allow intrusive surveillance to take place when the chief constable who is responsible for authorising the application in the first place, and the authorising person thereafter, whether that be a commissioner or a circuit judge, is satisfied that there is likely to be an abuse of legal professional privilege. Both of those people should satisfy themselves of that before authorisation is given, before approval is given and before bugging takes place.
That is not an absolute ban. It provides for the argument put forward by the Government about the improper use of legal professional privilege and the improper use of excepted communications. But it also provides that, unless there is good evidence of an abuse of those privileges, bugging should not take place. I believe that, not just from the proceedings in this House but also from the widespread and valuable debate on the issue in the media and among the public at large, that is what the people of this country want.
I have referred almost exclusively so far to legal privilege, but of course the issue of privilege in doctors' surgeries, in the confessional and to protect journalists' sources is also of very great importance indeed. The noble Lord, Lord Walton of Detchant, was cogent on this issue, as indeed were a number of signatories to a letter to The Times last week.
We have to protect these liberties against this form of surveillance; we have to do so with due regard to the effectiveness of police operations; but we have to protect them nevertheless. That is what the amendments do. I commend them to the House.
Lord Thomas of Gresford: My Lords, we on these Benches support the amendments. There may be some misapprehension about what occurs in a lawyer's office or in a barrister's chambers. The client facing criminal charges may give an account from his point of view which is not acceptable—which is clearly untrue—and a great deal of the time may be spent with a client ascertaining the truth in so far as he is prepared to give it. In that process the account that he gives will be

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tested. There will be, in effect, cross-examination of the client. He may say things that are true or are not true. But that kind of conversation is a vital part of the administration of justice in this country.
We have an adversarial system which requires there to be a fair prosecution, a truthful defence if possible—certainly so far as concerns the lawyers—and a judge or jury to decide the facts. If one side—the prosecution—has an insight into what is being said by the defendant, an insight into the advice he is receiving, the whole adversarial system becomes completely unbalanced.
If one were to reverse the position and suggest that a defence lawyer—counsel or solicitor—would have the opportunity of listening in to the advice that had been given by the Crown Prosecution Service to prosecuting counsel on the various queries that had been raised and the discussions concerning the weakness of the prosecution case, one could see just how much there would be a distortion of the process by the permitting of the bugging of solicitors' and counsels' offices and chambers.
What one envisages in the amendment is that when an application is made by a chief constable for the authorisation of bugging he will take that application along in writing—we would hope to a circuit judge but perhaps to one of the commissioners which our friends on the Labour Benches would have—as happens, for example, with a public interest immunity case at the present time, and present to the circuit judge or commissioner the case that he wishes to make for bugging to happen. He will actually say why that is necessary. He will not call evidence—he will not prove it—but under this amendment he will have to establish to the satisfaction of the circuit judge not that the solicitor and counsel are engaged in their very proper business of consulting with each other and consulting with the defendant, but that the lawyer has stepped over the bounds into criminality and has become a criminal himself by conspiring with his client either to put forward a false story or to do other things with him in relation to outside and extraneous matters in which the police have a very proper interest. The amendment puts forward a proper safeguard. We support it.
Lord Browne-Wilkinson: My Lords, I hope I may be forgiven for saying something about this amendment. I seem to have had a trailer from the noble Lord, Lord McIntosh, so perhaps I may just repeat what I said at Report stage.
It has always seemed to me of central importance in considering covert surveillance to appreciate that the effect of covert surveillance is not limited to the suspected villain. The criminal in his solicitor's office, the criminal conspiring, possibly or not, with his doctor or the criminal in the confessional—they are all trapped by a bug placed in the lawyer's office, the doctor's surgery or the confessional. If that bug is there it picks up not only what the suspected criminal says but what all other people say who come into the office, the surgery or the confessional. It is therefore a major infringement of perfectly innocent people's personal integrity and privacy if these bugs are inserted in such
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places. That said, it has never been at issue at any stage of the debate that the police need powers to pursue the serious criminal and that those powers include the power of surveillance. What has been at issue throughout, and what is still at issue, is the extent to which the need to pursue the serious criminal has to involve the infringement of the privacy of all of us. This is a question of degree.
Your Lordships' House is full of lawyers. I am a lawyer but I shall not go on about the lawyers because your Lordships will hear enough about them. It is a serious matter but it is not the only matter. What is important also is the relationship between doctor and patient, the relationship between the journalist and his source and the relationship between the priest and the penitent. In the Police and Criminal Evidence Act 1984 enormous thought and care were given to holding the balance between the needs of policing on the one hand and the rights of the individual on the other. All of that is incorporated into this amendment. All that is being done is to preserve the same rights as would attach if there were a search under search warrant to the materials obtained by bugging.
I cannot believe that that will bring effective police surveillance to an end. What I hope it will do is to protect your Lordships and all private individuals—about the only thing that has worried me in the Bill at all—from unnecessary invasion of traditional privacies. The amendment preserves only that. The bad hat doctor engaged in drug dealing and the twisted solicitor engaged in fiddling the system are not protected by this. All that happens is that the authoriser has to be satisfied that that is going on before he gives authorisation. For myself, I would urge your Lordships again—
Lord McIntosh of Haringey: My Lords, I wonder whether the noble and learned Lord will forgive me for intervening. It is not even as bold as that. One has to, "be satisfied that it is likely" to be going on.
Lord Browne-Wilkinson: My Lords, I am grateful to the noble Lord for his intervention. He is absolutely correct. The discussion that took place a little time ago suggests that this matter was breaking down into party advantage or party dispute. I believe that the encouraging thing about the attitude shown by your Lordships on the previous Monday was that the discussion, debate and the vote displayed cross-party inherent mistrust of intervention by the state in our affairs and a desire to provide such protection consistent with effective policing. This amendment is directed to exactly the same point and I commend it to the House.
3.30 p.m.
Lord Knights: My Lords, while I cannot see that this amendment, if accepted, will embarrass investigating officers in any way, nevertheless I am not persuaded that it is really necessary. The fact that the police are already using these techniques has been common knowledge at least since the debates on the Security Services Bill which started in 1995. How long it had

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been going on before then is not so clear: some say 20 years; others believe 10 years to be more likely. Whatever the time factor or the picture may be, as far as I am aware there has never been any suggestion and no evidence has been produced to indicate that the police sought to breach the principle of legal professional privilege. I believe that the ethical standards of the 43 chief constables involved are such that they would never seek to do so in the future.
More importantly, however, it is axiomatic that where an authorising officer, whoever he eventually turns out to be, is considering any application involving premises of this kind, unless it can be shown to his satisfaction that the relationship between the parties involved goes beyond that of lawyer and client and that the conversations that it is desired to intercept are likely to be such that they clearly would not amount to the giving of professional legal advice or,
"in connection with or in contemplation of legal proceedings"
—I quote from Section 10 of the Police and Criminal Evidence Act 1984—then the criteria set out in Clause 92 of the Bill cannot be met. It is axiomatic, as I say, that that question has to be raised if the criteria are to be met in any form.
Therefore, I suggest that while the amendment is not likely to embarrass the investigating officers it will be no more than a marker to indicate that the risk is recognised and in that way might resolve the queries and qualms of those who believe that there will be an effect. Experience in the past must be taken into account when we consider what may happen in the future.
Lord Marsh: My Lords, as a non-lawyer I grow slightly confused as the debate goes on. I have great respect for the knowledge of the noble Lord, Lord Knights. He has created some doubts in my mind. I had thought the position fairly clear until he referred to someone who was not confining himself, for example, to giving legal advice to a client. In serious crime it has to be accepted that there are crooked lawyers who are paid to give advice to assist the law breaker in his efforts. There are well documented cases of priests who are actively involved with or who support terrorists.
If the amendment was intended to prevent indiscriminate surveillance then I would support it totally. However, where there is a belief that a professional adviser, such as a doctor, a lawyer or a priest, is colluding with someone committing a serious criminal activity, it seems to me legitimate to seek to understand what is going on. I have not read the clause on which this amendment is based and what is legitimate legal advice. In my understanding, in many cases the amendment will be aimed precisely at people who are paid by law breakers to advise them how to continue to break the law. In those circumstances I believe all bets should be off for their legal privilege.
Lord Hacking: My Lords, as those noble Lords know who took part in discussion on these amendments at Report stage, I had some misgivings that the legal profession and their clients, and not others, should be put into a special category. At that time the noble Lord,
1092
Lord McIntosh, rightly corrected me. I now have the Police and Criminal Evidence Act in my hand so 1 shall not make the same mistake a second time. The noble Lord was able to draw my attention to Section 11 of the Act. He certainly satisfied me that the other persons who are in a privileged position such as the priest and his parishioner, the doctor and his patient, are receiving similar protection.
At Report stage I listened to the argument. 1 was wholly persuaded by the noble Lord, Lord Thomas, the noble and learned Lord, Lord Browne-Wilkinson, and the noble Lord, Lord Hutchinson, of the extreme importance of this protection as regards the freedom of the ordinary citizen. Therefore, I heard with some relief the noble Lord, Lord Knights, tell us just now that the provisions will not embarrass police investigations. I was delighted to hear that view expressed by the noble Lord. If it is correct, it seems to me that we should accept both the amendments. I urge my noble friends on these Benches to do so.
When my noble friend the Minister replied at Report stage she expressed certain misgivings. Perhaps I may quote from Hansard, at col. 465 of 20th January. She said,
"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".
She went on rightly to draw attention to the fact that this Bill and this Parliament are dealing with highly professional and successful criminals who will exploit any provision in any Bill to their advantage.
As the noble and learned Lord, Lord Browne-Wilkinson, said, this matter was considered with considerable care when both Houses of Parliament discussed what was then the Police and Criminal Evidence Bill. Again, the noble and learned Lord drew our attention to the provisions of Part II of that Act. The difficulties that my noble friend the Minister had in expressing her views about the amendment are identical to those that were faced and overcome when both Houses of Parliament passed the Police and Criminal Evidence Bill. I am at a loss to know what are the separate differences which my noble friend refers to as regards search warrants where the difficulties have been overcome. The amendments use the exact protection contained in the Act. I am at a loss to know the difference between the police investigation involving powers of entry, search and seizure, which Part II of the Act deals with, and what we are considering here, which is surveillance devices. It seems to me that there is no difference between the two. Therefore, if both Houses were correct as long as 13 years ago in the Police and Criminal Evidence Act, it seems to me that we must be right in agreeing to these two amendments.
The Marquess of Hertford: My Lords, perhaps I may briefly point out one other reason why great care should be taken in giving the police powers to investigate private conversations between a citizen and his lawyer or his doctor—I am talking about an innocent

1093
citizen. Quite simply, the reason is that anything that becomes known to the police is very likely to become known quite quickly to the press.
Lord Hutchinson of Lullington: My Lords, I am fearful of taking part in this debate because I know that the House can become tired of listening to lawyers. However, I think that the noble Lord, Lord Marsh, should be assured once again that this amendment does not in any shape or form protect the situation to which he referred. If there is a crooked lawyer, the wording of the amendment—
"an abuse of legal privilege"—
covers exactly that. It is encouraging to hear that, assured of that, the noble Lord would, as I understand it, support the amendment. I understand that the same applies equally to the noble Lord, Lord Knights.
The only reason I intervene is to give the House one anecdote which has come to my notice and which seems to highlight the mischief of the clause without the amendment. The other day I was told by a senior Queen's Counsel that he went to Belmarsh Prison to have a conference with his client, who was there on remand. He was shown into the interview room. When the client appeared in that interview room, he said that he could not enter into any discussion of his defence because he understood, as other inmates understood, that the room was bugged. The Queen's Counsel had a look around and could not see any bugs. Nevertheless, he had to leave the prison because the conference could not take place. However, he was so concerned about the matter that he contacted his Member of Parliament.
In due course—five or six weeks later—the Minister responsible for prisons, Ann Widdecombe, wrote to that Member of Parliament saying that it was indeed true that there was a hidden camera in the interview room. It was there to video every conference that took place in that room. She gave the assurance that there was no audio recording—in other words, there was no bug. The justification was that conferences between clients and their legal advisers are covered by prison rule No. 37 which states that such conferences are to be conducted within sight of an officer.
If a camera was to be inserted, was it not stupid to insert it secretly? Should it not have been inserted and a notice erected to warn both the client and the lawyer that everything that happened in that room was videotaped? At least that would ensure transparency. It may well also occur to your Lordships that videoing everything that happens in a conference is not the same as having an officer outside the room, as always happened throughout my professional experience. Such rooms normally have a glass side so that if the officer wants to do so, he can look through the glass to see what is going on.
The result of that happening in Belmarsh Prison is that it has given rise to a complete destruction of the trust between a client and his lawyer. People in prison are under tremendous stress. The client's defence may well be that a false confession was wrested from him or that something was planted on him by the police.
1094
Such a person may well fear that if there is a secret camera, there is also a secret bug. It is not exactly unnatural therefore for a prisoner to look with a certain degree of scepticism at an assurance which is given on behalf of Mr. Howard, who tends to call remand prisoners "criminals", not realising that until some evidence is produced and you are convicted, in law you are still an innocent person.
I tell that anecdote because it highlights the danger of this procedure unless it is covered within the terms of the amendment. The very fact of it will destroy the essential trust between the client and his legal adviser which, as has already been emphasised, has nothing to do with the privilege of the lawyer. It is a privilege that belongs to the client, to the member of the public. That is the whole point. It brings no advantage to the lawyer, but it is an essential part of what I might term the package in that the lawyer has a duty which exceeds his duty to his client. I refer to his duty to the court and to the administration of justice. The fact that there is such a trust between the client and the lawyer is a central part of our criminal process. It is one of the checks and balances which guarantee, so far as they can, that the procedures of the criminal law in this country are followed with a high degree of integrity.
3.45 p.m.
Baroness Blatch: My Lords, perhaps I may address first the noble Lord, Lord Hutchinson of Lullington, on his point about cameras in prisons. I do not want to take away from the principle that he was addressing, but while the noble Lord was speaking, I was conscious of a very good argument as to why there should be the equivalent of close circuit television in prisons. It is not very long ago—I mean weeks, rather than months—that a probation officer was taken hostage in an English prison. I understand that it is not very long since a solicitor was taken hostage in a Scottish prison. Such cameras are there as much for the protection of visitors, whether from the legal profession or anywhere else, as for any other purpose. We cannot expect to give prison officers the responsibility for ensuring safety and security in their prisons if they are not allowed to use technology to make sure that that safety can be secured. We are talking about cameras without audio facilities. I respect what my right honourable friend Ann Widdecombe said in another place—
Lord Hutchinson of Lullington: My Lords, I am most grateful to the noble Baroness for giving way. The crucial point is that of transparency.
Baroness Blatch: My Lords, but the prison knows that the cameras are there and the prisoners know that the cameras are there. I happen to know it because I visit prisons. I have no doubt that on the occasion cited by the noble Lord, the solicitor also knew that the camera was there—
Lord Hutchinson of Lullington: No!
Baroness Blatch: My Lords, he was told. Somebody told him in the course of the interview.

1095
The Government understand the wish to safeguard legal confidentiality and the other categories of particular sensitivity in the Police and Criminal Evidence Act definition of "excluded material". We accept entirely that the police should not be allowed to set out to listen in or otherwise to interfere with confidential conversations between a lawyer and his client or a doctor and his patient. In that sense, I am sympathetic to the underlying aims of the amendments. However, I explained at earlier stages the difficulties associated with exempting particular classes of information which would, whether we like it or not, create loopholes that criminals would be bound to exploit. To that end, I am grateful for the contributions of the noble Lords, Lord Marsh and Lord Knights. One of the main problems was that those applying for authorisation could not always know beforehand whether there was likely to be material present that would normally be the subject of legal privilege. These amendments take a rather different approach. They require the person who gives the authorisation to be satisfied that it is likely that an abuse of privilege, legal or otherwise, will occur. We believe that this is already implicit in Clause 92 but we want to give the matter further thought. We also need to consider that approach in the light of the safeguards that we have already introduced on this subject. The provisions in the Bill make it clear that authorisation by whoever should be given only where the action that is sought cannot reasonably be achieved by other means.
We have suggested the need to include in the code of practice that particular care should be given to these sensitive cases. The noble and learned Lord, Lord Browne-Wilkinson, knows that I have written to him on these matters. 1 have made available to the noble Lord, Lord McIntosh, a copy of that letter. I have placed a copy of that letter in the Library for anyone who wishes to read it. We intend to introduce new provisions in the code of practice to ensure that, subject to disclosure considerations, unrelated material is destroyed immediately. That will be of particular importance in cases where legal or other privilege is involved.
Finally, we introduced amendments at Report stage which required a commissioner to scrutinise notifications of any authorisations in these categories within 48 hours and gave him powers to quash an authorisation and order the destruction of records where he considered the authorisations to have been inappropriately given. I do not know where that safeguard, which I regard as being very important, stands in relation to judicial authority—it may be that they do not suffer the indignity of having their decisions second guessed—or whether it applies also to the amendment tabled by the noble Lord, Lord McIntosh.
The approach in these amendments may provide the basis for further safeguards, but I should like to take this away and give it further thought, in consultation with the police and customs, to see what more can be done that will not unduly inhibit its operational effectiveness. The amendments agreed to Part III of the Bill at Report stage mean that it cannot sensibly become law as it stands. It will be for another place to consider how best to proceed before this House has a further opportunity
1096
to consider the matter. For that reason, I believe that the debate we have just had is very important. It will leave the other place in no doubt that this is a particular concern of your Lordships.
However, a further look at this matter is not without problems. I have looked again at the wording of the noble Lord's amendment. Under the second leg in paragraph (b) there is reference to,
"any other place in or at which communication normally subject to legal privilege is taking place between a professional legal adviser and his client".
I give an example of what that may mean. It may include a house, office or any other premises where a wholly innocent lawyer—I do not suggest that he is a bent lawyer—has a discussion with a client who is suspected of being a criminal involved in serious crime. That would place the police in a very difficult position. So long as the lawyer was there discussing business with a so-called client according to this amendment that place would be off-limits.
We want to look at this matter again. I have referred to the Government's desire to protect legal privilege, but it must not compromise the work of the police to investigate serious and/or organised crime.
Lord McIntosh of Haringey: My Lords, I acknowledge straight away that the Minister wrote to the noble and learned Lord, Lord Browne-Wilkinson, and sent a copy of that letter to me. The letter bears today's date and reached me only in the latter part of this morning, but I hope that I have taken it into account in what I have said. The noble Baroness has placed the letter in the Library and so it is not confidential.
Towards the end of her letter the Minister says that the Government are happy to receive comments and proposals on how to strengthen the requirements in the code to destroy unrelated materials quickly while satisfying disclosure obligations. The Government answered the point about the destruction of material at an earlier stage. We took that into account and acknowledged that the Government had introduced amendments, particularly those relating to fingerprints, which went some way in dealing with the issue of destruction.
However, these amendments are not concerned fundamentally with the issue of destruction; nor are we satisfied that the issues raised by the amendments should be dealt with in a code of practice rather than on the face of the Bill. It is true that the Bill goes to another place with some issues of prior judicial authorisation unresolved, but that is no reason why we should not send today a clear message to that other place that we are determined to defend the civil liberties of individuals who communicate with their lawyers, priests, doctors or who act as sources for journalists. We want to send to another place exactly that message which the noble Lord, Lord Hacking, identified; namely, that if it was good enough for both Houses in the Police and Criminal Evidence Act 1984 and had survived without criticism for the past 13 years, it ought to be good enough for intrusive surveillance when that matter is now properly brought under the control of the law.

1097
Although I acknowledge the goodwill in what the Minister has said, she has not really said anything new or recognised the fundamental force behind these amendments. I seek the opinion of the House on Amendment No. 1.
3.57 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 161; Not-Contents, 161.

Division No. 1

CONTENTS

Ackner, L.

Graham of Edmonton, L. [Teller.]

Acton, L.

Grantchester, L.

Addington, L.

Greenway, L.

Ailesbury, M.

Grenfell, L.

Alderdice, L.

Grey, E.

Allen of Abbeydale, L.

Hacking, L.

Ampthill, L.

Halsbury, E.

Archer of Sandwell, L.

Hampton, L.

Ashley of Stoke, L.

Hamwee, B.

Avebury, L.

Harris of Greenwich, L.

Barnett, L.

Haskel, L.

Bath, M.

Hayman, B.

Beaumont of Whitley, L.

Hayter, L.

Berkeley, L.

Healey, L.

Blackstone, B.

Henderson of Brompton, L.

Blease, L.

Hertford, M.

Bledisloe, V.

Hilton of Eggardon, B.

Borne, L.

Hollis of Heigham, B.

Bridges, L.

Hooson, L.

Brooks of Tremorfa, L.

Hope of Craighead, L.

Browne-Wilkinson, L.

Howell, L.

Bruce of Donington, L.

Hughes, L.

Callaghan of Cardiff, L.

Hutchinson of Lullington, L.

Calverley, L.

Hylton-Foster, B.

Carmichael of Kelvingrove, L.

Ilchester, E.

Carver, L.

Inchyra, L.

Castle of Blackburn, B.

Jay of Paddington, B.

Chorley, L.

Jenkins of Putney, L.

Clancarty, E.

Kennet, L.

Cledwyn of Penrhos, L.

Kirkwood, L.

Clinton-Davis, L.

Lawrence, L.

Cross, V.

Lloyd of Berwick, L.

Currie of Marylebone, L.

Lockwood, B.

Dacre of Glanton, L.

Longford, E.

Dainton, L.

Lovell-Davis, L.

Darcy (de Knayth), B.

Macaulay of Bragar, L.

David, B.

McIntosh of Haringey, L.

Dean of Beswick, L.

McNair, L.

Dean of Thomton-le-Fylde, B.

McNally, L.

Desai, L.

Mar and Kellie, E.

Donaldson of Kingsbridge, L.

Mason of Barmsley, L.

Donoughue, L.

Merlyn-Rees, L.

Dormand of Easington, L.

Meston, L.

Dubs, L.

Methuen, L.

Eatwell, L.

Mishcon, L.

Ezra, L.

Molloy, L.

Falkender, B.

Monkswell, L.

Falkland, V. [Teller.]

Monson, L.

Farrington of Ribbleton, B.

Morris of Castle Morris, L.

Fisher of Rednal, B.

Murray of Epping Forest, L.

Fitt, L.

Nathan, L.

Gallacher, L.

Nicol, B.

Gladwin of Clee, L.

Noel-Buxton, L.

Glenamara, L.

Ogmore, L.

Gould of Pottemewton, B.

Oxford, Bp.

1098

Parry, L.

Stallard, L.

Paul, L.

Stoddart of Swindon, L.

Perry of Walton, L.

Strabolgi, L.

Peston, L.

Strafford, E.

Prys-Davies, L.

Symons of Vemham Dean, B.

Ramsay of Cartvale, B.

Taveme, L.

Richard, L.

Taylor of Blackburn, L.

Ritchie of Dundee, L.

Taylor of Gryfe, L.

Robson of Kiddington, B.

Tenby, V.

Rochester, L.

Thomas of Gresford, L.

Rodgers of Quarry Bank, L.

Thomas of Walliswood, B.

Roll of Ipsden, L.

Thomson of Monifieth, L.

Russell, E.

Thurso, V.

Sainsbury, L.

Tordoff, L.

Turner of Camden, B.

Saltoun of Abernethy, Ly.

Wallace of Coslany, L.

Sandwich, E.

Wallace of Saltaire, L.

Sefton of Garston, L.

Walton of Detchant, L.

Serota, B.

Wharton, B.

Sewel, L.

White, B.

Shannon, E.

Whitty, L.

Shepherd, L.

Wigoder, L.

Simon, V.

Wilberforce, L.

Simon of Glaisdale, L.

Williams of Elvel, L.

Slynn of Hadley, L.

Williams of Mostyn, L.

Smith of Gilmorehill, B.

Winchilsea and Nottingham, E.

NOT-CONTENTS

Aberdare, L.

Cuckney, L.

Addison, V.

Cullen of Ashbourne, L.

Ailsa, M.

Cumberlege, B.

Aldington, L.

Davidson, V.

Alexander of Tunis, E.

Dean of Harptree, L.

Allenby of Megiddo, V.

Denbigh, E.

Anelay of St. Johns, B.

Denham, L.

Arran, E.

Demon of Wakefield, B.

Astor of Hever, L.

Dilhome, V.

Balfour, E.

Dixon-Smith, L.

Balfour of Inchrye, L.

Downshire, M.

Barber of Tewkesbury, L.

Ellenborough, L.

Belhaven and Stenton, L.

Elles, B.

Beloff, L.

Elliott of Morpeth, L.

Bemers, B.

Elton, L.

Biddulph, L.

Feldman, L.

Birdwood, L.

Ferrers, E.

Blaker, L.

Flather, B.

Blatch, B.

Forbes, L.

Bowness, L.

Gainford, L.

Boyd-Carpenter, L.

Gainsborough, E.

Brabazon of Tara, L.

Goschen, V.

Brentford, V.

Grimston of Westbury, L.

Bridgeman, V.

Haig, E.

Brougham and Vaux, L.

Hailsham of Saint Marylebone, L

Bruntisfield, L.

Hardinge of Penshurst, L.

Bumham, L.

Harmar-Nicholls, L.

Byford, B.

Harris of Peckham, L.

Cadman, L.

Henley, L.

Caldecote, V.

Holderness, L.

Campbell of Croy, L.

HolmPatrick, L.

Carnegy of Lour, B.

Hood, V.

Camock, L.

Howe, E.

Carr of Hadley, L.

Inglewood, L.

Chadlington, L.

Ironside, L.

Chalker of Wallasey, B.

Jenkin of Roding, L.

Chelmsford, V.

Johnston of Rockport, L.

Chesham, L. [Teller.]

Kenyon, L.

Clanwilliam, E.

Kimball, L.

Clark of kempston, L.

Knights, L.

Cochrane of Cults, L.

Knutsford, V.

Cockfield, L.

Lauderdale, E.

Coleridge, L.

Leigh, L.

Constantine of Stanmore, L.

Lindsay, E.

Courtown, E.

Liverpool, E.

Cox, B.

Lucas, L.

Cranborne, V. [Lord Privy Seat.]

Lucas of Chilworth, L.

1099

Luke, L.

Platt of Writtle, B.

Lyell, L.

Plummer of St. Marylebone, L

McColl of Dulwich, L.

Pym, L.

McConncIl, L.

Quinton, L.

Mackay of Ardbrecknish, L.

Rankeillour, L.

Mackay of Clashfern. L. [Lord Chancellor.]

Rees, L.

Renfrew of Kaimsthom, L.

Mackay of Drumadoon, L.

Renton, L.

Macleod of Borve. B.

Rotherwick, L.

Malmesbury, E.

Saatchi, L.

Marlesford, L.

Sandford, L.

Marsh, L.

Seccombe, B.

Middleton, L.

Selbome, E.

Miller of Hendon, B.

Shaw of Northstead, L.

Milverton, L.

Skelmersdale, L.

Montagu of Beaulieu, L.

Soulsby of Swaffharm Prior, L.

Montgomery of Alamein, V.

Strange, B.

Mountevans, L.

Strathclyde, L. [Teller.]

Mowbray and Stourton, L.

Sudeley, L.

Munster, E.

Swansea, L.

Murton of Lindisfarne, L.

Swinfen, L.

Napier and Ettrick, L.

Tebbit, L.

Nelson, E.

Teviot, L.

Norrie, L.

Thomas of Gwydir, L.

Northesk, E.

Thurlow, L.

O'Cathain, B.

Trumpington, B.

Orkney, E.

Vivian. L.

Orr-Ewing, L.

Westbury, L.

Oxfuird, V.

Whitelaw, V.

Palumbo, L.

Wise, L.

Park of Monmouth. B.

Wolfson, L.

Pearson of Rannoch, L.

Wyatt of Weeford, L.

Perth, E.

Wynford, L.

Pilkington of Oxenford, L.

Young, B.

4.8 p.m.
The Lord Chancellor: My Lords, there being an equality of votes, in accordance with Standing Order No. 54 I declare the amendment disagreed to.
[Amendment No. 2 not moved.]
Baroness Hilton of Eggardon Baroness Hilton of Eggardon moved Amendment No. 3:
Page 36, line 15, at end insert—
("(8) If information or property is obtained or retained in whatsoever form under the powers conferred by this Part, the information or property shall, within three years of the date on which the relevant authorisation was first given, be destroyed or, if applicable, shall be returned to the person from whom the property was obtained or to whom the information relates, 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.
(9) Where a decision is taken under subsection (8) that information or property should not be destroyed or returned, the Chief Commissioner appointed under section 96 shall be notified as soon as reasonably practicable of that decision and the reasons for it and may, if he considers it necessary to do so, vary the decision.").
The noble Baroness said: My Lords, reference was made in relation to the previous amendment to destruction of property and the letter that the Minister wrote to the noble and learned Lord, Lord Browne-Wilkinson. This is an issue that we have addressed at previous stages of the Bill both in Committee and on Report. Where police have obtained property and retained it under the powers conferred by the Bill, this amendment suggests that the property
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should be destroyed after a period of three years. This is on all fours with the destruction of fingerprints where no prosecution is taking place and where a suspect has been cleared or ceases to be a suspect. It therefore seems appropriate that property that has been seized as possible evidence should be destroyed in the same way as fingerprints.
This amendment would be of considerable benefit to the police. I have had over the years a great deal of experience of going through CID property cupboards and finding property which was many years old. The officers have moved on and it is not at all apparent to which case it applies. We have had recent cases where the police have failed to keep track of files and often property has been seized as possible evidence. If the police were required to destroy that after three years, it would be of assistance in keeping property cupboards up to date and ensuring that any material is relevant and is potential evidence.
The amendment provides for the case where, as suggested in the Minister's letter, some of the property seized may be relevant to the case and some may be innocent property. We provide for the need to retain all possible evidential property by allowing for the chief commissioner appointed under Clause 96 to be notified so that property that may still be relevant—may still be evidence—may be retained. The amendment is sensible. It would help the police keep their property and evidence up to date and ensure that a great deal of material not relevant to a particular case was not hanging about in police stations or squad cupboards. I beg to move.
Lord Renton: My Lords, before the noble Baroness sits down I wonder whether she would be so good as to make it clear who is to be the authority to take the final decision under the amendment, because it is not clear from the amendment itself.
Baroness Hilton of Eggardon: My Lords, in general, the authority will be the Bill when it becomes law. We provide for occasions when the property seized may still be useful as evidence. It may be further retained on application to the chief commissioner whom the Bill appoints.
Baroness Blatch: My Lords, it is an entirely proper general principle that the police should retain intelligence obtained through surveillance operations for only for so long as it is operationally necessary. But I think that it is a matter of best practice rather than statutory provision. And in any event this amendment would go very much further.
Under the amendment somebody—and like my noble friend, I know not who—would have to decide within three years whether to destroy or hand over the product of surveillance operations. It is important that we know who would be responsible for that. If one accepts the second leg of this amendment, a person mentioned in a taped conversation might suddenly be presented with a transcript when he had had no idea that an operation had been mounted. It is crucial to the continued effective use of these techniques not only that individual targets

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remain unaware of their targeting but also that the criminal world does not obtain a general picture of the pattern of operations and police capabilities.
The response to this objection may be that the amendment protects against such damage by providing that there need be no disclosure if it would be prejudicial to continued functions. But it is either necessary to conclude that this exception would be applied so routinely that the entire provision for disclosure would be a dead letter or that it offers inadequate protection.
It must be remembered that Clause 97(4) already allows the chief commissioner to order the destruction of records when he finds authorisations have been given improperly. It goes much too far to require destruction—still less disclosure—in the case of legitimate authorisations.
It should be remembered, too, that the product of police and Customs intrusive surveillance operations can, subject to the views of the court, be used as evidence. Particularly where information has been obtained by instrusive 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 so that it can fulfil its disclosure obligations.
Finally, may I say that I find the emphasis on property in this amendment misconceived. The powers in this part of the Bill are not to be used as a substitute for the procedures for searching premises and seizing property that are available under other legislation. This will not be a means of obtaining and retaining physical evidence. I hope that the amendment will not be pressed.
Baroness Hilton of Eggardon: My Lords, I am grateful to the Minister for that detailed response. She may well be right that the amendment is inappropriately placed, although I believe that in practice it would be useful to the police if procedures as to how long property should be retained were clearly laid out. I hope that it may be possible to address this issue in another place, without going so far. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 94 [Authorisations: procedure and duration etc.]
Baroness Hilton of Eggardon Baroness Hilton of Eggardon moved Amendment No. 4:
Page 37. line 24, at end insert—
("() Where an application for authorisation or approval under this Part is refused, it may be renewed only to the same person from whom authorisation or approval was originally sought, unless it is unavoidable that it be made to another person holding the same office.").
The noble Baroness said: My Lords, the amendment deals with the occasions when an application for authorisation or approval has been refused. It is intended to stop what I believe has been called "forum shopping",
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where an officer has applied unsuccessfully for authorisation and he might seek to renew the application by applying to some other authority.
If, as currently stands, the application were made to a chief constable, there would be less of a problem than there would be with the Bill as amended when the application is made to a judge or commissioner. A chief constable would of course know about a previous application. So he would not be subjected to the same possibility of not knowing that an application had been made. If it is suggested, for example, that it were a circuit judge to whom the officer could make application, it would be possible for an officer to make an application to more than one circuit judge in succession if the application were turned down. This is intended to be a restriction on that possibility in order to ensure that unsuccessful applications cannot be touted around until they are granted. That bad practice has on occasions happened in the past in relation to warrants required from magistrates. The amendment is an attempt to restrict that possibility. I beg to move.
4.15 p.m.
Lord Renton: My Lords, it seems to me that the amendment is unnecessary because Clause 94 is pretty wide and flexible in its terms as it is.
Baroness Blatch: My Lords, I understand the motive behind this amendment, but I believe, as the noble Baroness recognised, that the need for it crucially depends upon whatever authorisation process is ultimately agreed following the amendments approved on Report.
The aim of the amendment is to prevent those applying for authorisation or approval from "shopping around", as is the current expression, if an application is refused. There is clearly a danger, certainly if authorisations are to be given by circuit judges, that a series of identical applications could be made in the hope of securing authority previously denied. I recognise that danger and I believe that serious consideration would have to be given to a provision on these lines if authorisation by circuit judges were to be implemented.
I do not believe that the same difficulties arise with authorisations given by a commissioner or indeed by a chief officer, as the noble Baroness again recognised. Although the Bill envisages a number of commissioners being appointed, there will be a limited number and it would not in practice be possible to submit a series of identical applications in the hope of getting a different decision. The same is true of chief officer authorisations, because there would not be an alternative chief officer to whom a further application could be made.
If an amendment on these lines were needed—I agree with my noble friend that we do not see the need for it—we would have to consider further the circumstances in which it could be said that the renewal of an application was unavoidable. It would also be necessary to clarify what was a renewal and what constituted a fresh application containing significant new information.

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It is always possible that on first application the application does not provide enough supporting evidence to the authorising officer. The chief constable could go away, put that right and return with a renewed application. I am aware of the problem that the noble Baroness is trying to address in the amendment. Those practical issues aside, I believe that consideration of the need for such a provision would better follow the current contradictions in this part of the Bill being resolved. In the light of that, I hope that the noble Baroness will not press the amendment.
Baroness Hilton of Eggardon: My Lords, I am grateful to the Minister for her sympathetic understanding of the difficulty. It is a difficulty depending on which parts of the Bill are amended. If finally a large number of people can give authority some such amendment to the Bill may be required. However, in the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 97 [Principal functions of Chief Commissioner]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment
No. 5:
Page 40, line 15. leave out from ("shall") to end of line 16 and insert ("consider all the circumstances of the case").
The noble Lord said: My Lords, I shall speak also to Amendment No. 8. Amendment No. 5 is in Clause 97, whereas Amendment No. 8 is in Schedule 7 and therefore deals with complaints.
We are trying to remove judicial review criteria which, under the Bill, would determine the basis on which the commissioner, first, reviews and, secondly, considers complaints about authorisations for intrusive surveillance.
The situation has changed dramatically as regards the Bill as printed and its final form. First, thanks to the Government's concessions on Report, there is now provision for a body of commissioners rather than a single commissioner. Secondly, our amendments carried on Report provide that the commissioners or one of them should be responsible for the prior judicial authorisation of intrusive surveillance.
Both of those changes increase the arguments for the amendments rather than diminish them. The Government's previous difficulty with the amendments appeared to be the risk of what the Minister called second-guessing; in other words, the risk that a commissioner would be judging his own original authorisation.
With the acceptance of the need for a body of commissioners, that need not be the case. I do not know whether further amendment will be required, but I shall be happy to see a provision, which can be made administratively, to the effect that a commissioner different from the commissioner who was responsible for the initial authorisation shall be responsible for the review
Without commitment to what may happen in another place or administratively after the change in government, I envisage that, for example, one of the
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presiding judges in each of the circuits could be sworn in as a surveillance commissioner in order to perform locally the authorising functions which are called for in the amendments. We have not teased out the Government's view on prior judicial authorisation, but we can at least assume that there is a substantial chance that if they continue to set their face against prior authorisation they will not succeed in persuading the House of Commons that that is the right action. I believe that the Bill will finally reach the statute book with prior judicial authorisation and we will all be much relieved for that.
If, as a result of my amendments, prior authorisation is by a commissioner there could be another commissioner, or another body of commissioners which performs the review tasks of the commissioning body, who is responsible for the review. Under those circumstances, it is more important that such a review should be on all the circumstances of the case rather than on judicial review criteria. Judicial review criteria would mean that the commissioner was restricted to procedural propriety and reasonableness—that is, deciding whether the decision was such that no reasonable authorising officer could have made it—in deciding whether the authorisation or approval was properly given.
That weights the case very strongly against the subject of the intrusive surveillance in Amendment No. 5 or against the complainant in Schedule 7. There must be scope for all the circumstances of the giving of the authorisation to be considered and weighed against the criteria which are set out in what is now Clause 92. I submit humbly as a non-lawyer that there is nothing to suggest that, on occasion, judges are in any way unwilling to disagree with each other when they have different functions to perform. I hope that they will find nothing improper in the amendments because I believe that they are sensible and I commend them to the House. I beg to move.
Lord Browne-Wilkinson: My Lords, I do not believe that the amendment merits being pressed to a Division, but there are questions which I hope may receive further attention. Obviously, the importance of the amendment depends largely on the authorising procedure that is eventually adopted. Under the Bill as originally presented, there was to be no prior authorisation. The only judicial check on the legality of what was proposed was an ex post facto check by a commissioner. Now, depending on which side of the House one sits, there may be any number of prior authorisations, some of which may be judicial and some of which will not.
However, even under the amendment tabled by the Labour Party and passed on Report, there are instances in which prior judicial authorisation is not required. Your Lordships will recall that under Clause 91 prior authorisation is required only where there is an interference with property in respect to premises. Even under the Labour Party amendment, we are left without any requirement for prior authorisation, first, as regards the bugging of vehicles. I believe that it was intended to exclude that. It means that in the heat of the operational

1105
moment, one having stuck the bug on the wrong car one can transfer it to the right car. Even a judge is aware of that operational difficulty. Secondly, it manages to miss what is potentially of great importance; namely, as I have mentioned previously, the ability to have audio surveillance inside a building without entering to place a bug. I refer to the wonders of modern science, which I believe the police possess, whereby through vibration or some other means one can overhear what is happening inside premises without entering to bug them. I raise the matter because I hope that noble Lords will consider it when deciding the rationale of that amendment.
Its direct relevance to the present provision is that there will be cases in which surveillance not involving an entry onto premises will involve subsequent ratification by a commissioner. That is where the magic words "the principles for judicial review" come into effect. If a judge is given the power to authorise within the powers conferred on him, he decides where the balance lies; he decides what is right and wrong. In the process of judicial review, the judge is not the decision maker any more than the commission would be. In the ordinary case, the Minister is the decision maker; the judge simply reviews it for legality. So it is in the case here. If the chief constable has authorised remote surveillance, that would require review by a commissioner after the event. In those circumstances, the function of the commissioner/judge would not be to decide whether he thought it was justified to exercise his own judgment. Only if there were a clear departure from the law or the reviewing commissioner thought that no constable in his right mind could have reached the conclusion that it was a proper decision could anything be done about it. It is the judicial review principle of irrationality.
I draw attention to that primarily to get it on the record. I hope that when this matter is looked at again, further consideration will be given to whether it is right simply to have the judge/commissioner approaching those cases not on the basis of what he thinks is right or wrong but whether it has been demonstrated that the chief constable has reached a view which is wholly irrational. I do not believe that is an adequate protection by itself.
4.30 p.m.
Lord Hacking: My Lords, as a lawyer who sits on these Benches, perhaps I may ask my noble friend to look again at these matters for the reasons that have been advanced, in particular by the noble and learned Lord, Lord Browne-Wilkinson. I shall not try again to develop the education of the noble Lord, Lord McIntosh, on the test for judicial review. It suffices to say that the function here must be a primary function and not a judicial function.
Baroness Blatch: My Lords, again we are discussing this amendment in a vacuum and it is difficult. Nevertheless, the amendments must be seen within the wider context of Clause 97 and Schedule 7 as a whole. The provisions of the Bill are concerned not with the
1106
original authorisation process but with the review of authorisations once given and with the investigation of complaints. In other words, those provisions are concerned with the question of whether authorisations have been given lawfully in accordance with the requirements of the legislation.
The amendments approved on Report envisaged two different authorisation procedures. The intention of the new Clause 91 was that some authorisations by chief officers would not take effect until approved by a commissioner; but in other cases the authorisation would continue to be given by the chief officer alone, a point made by the noble and learned Lord, Lord Browne-Wilkinson. The intention of the rather different amendments to what is now Clause 92 was that all authorisations would be given by a circuit judge. In the light of those amendments, the Bill as it stands at present does not specify what test is to be applied by an authorising circuit judge or by a commissioner when deciding whether to give or withhold approval and certainly does not limit it to applying the principles of judicial review.
However, I confess that there was a good deal of confusion on this point during our debate on Report. The noble Lord, Lord Lester of Herne Hill, is not in his place but I hope that I can be forgiven for praying in aid what he said at col. 498 of Hansard:
"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".
Slightly later on, the noble Lord said:
"The function of the judge at the outset is to decide whether the operational decision is according to the rule of law…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".—[Official Report, 20/1/97; cols. 498 and 499.]
This is a matter which clearly requires further thought in the light of the amendments which the House passed last week. Whatever the outcome of that further work, different considerations apply at the review stage to which Clause 97(5) and Amendment No. 5 refer. That is because at that stage the commissioner is reviewing an authorisation which has already been given by a circuit judge or a commissioner as the Bill currently stands, and from which information may already have been obtained. The same is true in relation to the investigation of complaints to which Schedule 7 and Amendment No. 8 refer. In our view, whoever takes the original decision, the test at the review stage should be different. It should not simply be another assessment of the merits but should consider whether the decision was taken properly in accordance with judicial review principles.
I accept entirely that the situation now is rather confused. We clearly need to sort out who precisely will be giving authorisations and in what circumstances that will be done. That is the principal question on which we shall seek to find a workable way forward in the light of the amendments passed and in the light of the need to ensure that the police are able to combat effectively serious, organised crime.

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As the House is aware, the Government believe that the training, experience and accountability of chief officers makes them best equipped to make what are essentially operational judgments. That is a separate issue. It must surely be right that once an authorisation has been finally given, any review of the kind envisaged in Clause 97 and Schedule 7, to which these amendments refer, must not simply second guess the original decision but should consider whether it was reasonable, properly reached and based in law.
That is what the Bill, as drafted, provides. That issue will require further consideration in the light of the authorisation process ultimately agreed. However, I do not think that it will help that process or that it is right on the merits of the Bill as it now stands for us to change along the lines proposed the test which is to be applied after an authorisation has been properly given.
To allow someone who is conducting such a review simply to substitute his judgment for that of the person giving the original authorisation would confuse the functions of authorisation and review. Throughout our discussions on the Bill, we have held that making authorisations and the functions of review should be distinct and separate. It would put those giving authorisation, whether circuit judges, commissioners, or even chief officers, in a very difficult position.
Under the amendment, we must now contemplate the prospect of yet another commissioner to review the commissioners who approve intrusive surveillance. When we discussed this matter on the last occasion, the noble Lord said that authorisation would be made by chief officers. Prior approval would be given by the commissioner. The authorisation technically, only with prior approval, would be given by the chief constable. Now we hear that there will be another commissioner or a body of commissioners—and the noble Lord actually said that—reviewing the authorising officer who could be interpreted as being either the commissioner who approves and the chief constable who authorises or one or the other.
As regards the proposal that a circuit judge should give the authorisation, I am not sure whether the amendment envisages any reviewing function of that decision at all or even whether the judicial test is to be set aside if there is to be a reviewing function. As we understand it, the commissioners will be empowered to second guess, if one sets aside the judicial review test, an operational authorisation given by a circuit judge. This is clearly unfinished business and it would be quite inappropriate for the House to take a view on the amendment.
Lord McIntosh of Haringey: My Lords, of course, since the Government have failed to take a view on the amendments which were passed last time or have certainly failed also to communicate such views to the House, to some extent there must be a truth in what the Minister says. She argues that we are debating in a vacuum. The vacuum was created by amendments carried against the Government, but the Bill is in the hands of the Government. It has been and remains their
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responsibility to advise the House about what the Government's response to those amendments will be so that the House can complete its proper revising function.
Baroness Blatch: My Lords, with the leave of the House, I am grateful to the noble Lord for giving way. This Bill is not in the hands of the Government. We have a democratic process and this Bill is in the hands of Parliament. The elected Chamber has not yet had an opportunity to consider the Bill, but it will do so. There is an arrogance if we assume that somehow, all issues are resolved by this Chamber. It must be for the other place to take a view and to be informed that this House at this moment does not have a definitive view on this matter.
Lord McIntosh of Haringey: My Lords, we are splitting hairs about words. The Bill had the name of the noble Baroness on it when it was first introduced in this House, and when it goes to another place, it will have the name of Mr. Secretary Howard. They are responsible for promoting it in Parliament and it is for Parliament to react to it as it thinks fit, as it has done. Therefore I cannot accept the argument that there is something wrong about our seeking to amend the Bill, as it has been amended in the past, and as we think it should continue to be amended.
I am sorry that the noble Lord, Lord Hacking, has given up on my belated legal education. He must think I am hopeless if he is not even willing to explain where I go wrong. However, the fundamental issue remains; namely, that the mis-statements of my position by the Minister in the final part of her speech were so profound that in anyone else I would think they were wilful mis-statements. Of course we are not proposing that there should be a to and fro between two different kinds of commissioners. Under the Bill an application made by subordinates will be authorised by a chief officer. It cannot be acted upon except with the approval of the commissioner. I was merely making helpful suggestions as to who that commissioner might be, as one of a body of commissioners introduced to the Bill—I remind the House—by the Government in their own amendments. The Minister claimed that it would be a repetitive process because the review and the handling of complaints in Schedule 7 would be carried out by someone of the same rank and type, if not the identical person, to the person giving the approval in the first place. However, the process is entirely different.
The person giving the approval is looking at one case. As the Government have acknowledged in their own amendments, review is a review of a case as one of all of the cases for review. It is a comparative review and it can be conducted subsequently—as the Government have always argued—only by someone who has before him the evidence about all of the cases of intrusive surveillance which have been authorised and approved. I simply cannot accept there is any element of second guessing here.
4.45 p.m.
Lord Browne-Wilkinson: My Lords, I am not sure that the noble Lord has it quite right. I say that with great respect and not in any way associating myself with

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the views of the noble Lord, Lord Hacking. It is difficult to appreciate in the Bill as it now stands but as originally drafted the commissioner's function was not simply to review the operation of the Bill as a whole but to consider and investigate complaints. Under the Government amendments introduced last Monday, the commissioners are given a different role; namely, to look at each authorisation. In relation to those two activities they are reviewing an individual decision in each case, not the general policy. The provisions to which the noble Lord objects provide that on such review they apply judicial review principles; that is to say, they ask: has the authoriser lost his marbles? and not the question: would I, the judge, if the authoriser, have authorised it?
Lord McIntosh of Haringey: My Lords, I am most grateful to the noble and learned Lord. If this goes on, I hope I shall not be faced with a bill from the Council for Legal Education, or indeed from any individual lawyer in this House. I am enormously grateful to the noble and learned Lord for his definition of judicial review. I shall use the definition—has the authoriser lost his marbles?—in the future. That makes some sense and is much clearer to the layman than most of the other definitions which have been used.
I acknowledge—not least because of Government amendments, although also to a certain extent because of Opposition amendments—that the Bill is a moving target. I have sought to argue that the purpose of widening the principles of review and the consideration of complaints is still fundamentally there. However, I acknowledge, on the advice of the noble and learned Lord, Lord Browne-Wilkinson, that it would be inadvisable—certainly for someone with as little skill in the use of firearms as myself—to seek to bring down a moving target at this stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 6:
After Clause 98, insert the following new clause—
REVIEW OF PART III
(" The Secretary of State shall appoint a person who holds or has held high judicial office within the meaning of the Appellate Jurisdiction Act 1876 to review the operation of this Part not more than one year after the coming into effect of this Part and a report on the results of that review shall be laid before both Houses of Parliament.").
The noble Lord said: My Lords, this amendment requires the Secretary of State to appoint the appropriate person, namely, a senior judicial person, to carry out a review of the operation of this part of the Bill not more than a year after its coming into effect. This is triggered by the quality and nature of the review which the noble and learned Lord, Lord Lloyd of Berwick, recently carried out of, among other things, the Prevention of Terrorism Act, the Emergency Provisions Act and the Interception of Communications Act in so far as they refer to Northern Ireland.
It has also been helpful to hear on previous occasions in this House, and a few moments ago, the remarks of the noble and learned Lord, Lord Browne-Wilkinson, and of the noble Baroness, Lady Hilton of Eggardon. This amendment may be too narrowly drafted. It is tabled to inquire what the Government's views may be. This is a useful question to pose because inevitably in the context of the Bill we have focused on intrusion into privacy by the police. In a sense that is an injustice to them because it is a limited view. There are many other intrusive agencies in this country such as private investigators of different sorts, journalists and criminals.
As the noble and learned Lord, Lord Browne-Wilkinson, and the noble Baroness, Lady Hilton of Eggardon, pointed out, intrusive sophisticated devices are readily available on the commercial market and the review I am suggesting should possibly be wider than is suggested in the confines of the amendment. For example, what is the Government's view about admissibility in evidence of material under the Interception of Communications Act? Ought there to be a licensing scheme for intrusive electronic devices which do not require entry into private premises? How does intrusion by other agencies, for example private detectives, industrial espionage and others, chime in with the regime we are imposing on the police? I readily confess that the amendment is rather narrowly drawn—it had to be because of the nature of the Bill—but it would be helpful to have a preliminary tentative government view as to whether a general inquiry into intrusion into privacy, private premises, private conversations and so forth, is now appropriate. I beg to move.
Lord Renton: My Lords, I suggest that the amendment is not appropriate. If we look at Clause 98, we see that the chief commissioner; that is, the person appointed under Clause 96 by the Prime Minister, and who has held high judicial office, shall,
"make an annual report on the discharge of his functions to the Prime Minister…The Prime Minister shall lay before each House of Parliament a copy"
of that report. I should have thought that that gives us all that we could reasonably require. To say that the Secretary of State shall appoint yet another person who has held high judicial office,
"to review the operation of this Part not more than one year after the coming into effect of this Part"
is, quite frankly, duplicating. I say with respect that that is over-zealous and unnecessary.
Baroness Blatch: My Lords, I am grateful to my noble friend for that intervention because what we now have is a chief constable, a commissioner who is to approve the authorisation, who would be a High Court judge, a further commissioner or body of commissioners to review the authorising officer, as mentioned a moment ago by the noble Lord, Lord McIntosh of Haringey, and now a further person, also holding high judicial office, to review the operation of Part III. As the noble Lord has just suggested, it is not simply a matter of reviewing the operation of Part III; it is a wider question than that. Certainly the points made by my

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noble friend Lord Renton are right. Clause 98 covers a regular report to the Prime Minister and to Parliament of the way in which these measures will work. As is the convention with all new Acts of Parliament, the Home Office keeps these matters under review. I am somewhat alarmed at the idea of introducing yet another layer in the oversight and review process.
At present under the Bill we have circuit judges and commissioners authorising intrusive surveillance operations. And we have a chief commissioner and commissioners reviewing the authorisations given by themselves or by judges, with the chief commissioner reporting annually to the Prime Minister on the discharge of his functions. This amendment seeks to introduce yet another layer, whose role will be to review the reviewer.
I believe that the amendment is unnecessary, as my noble friend Lord Renton said. Government amendments approved at Report stage provide for the appointment of a chief commissioner and such a number of other commissioners as the Prime Minister sees fit, whose role and responsibilities will include keeping under review the performance of functions under Part III of the Bill. Provisions also require that an annual report be submitted to the Prime Minister and that the commissioner may report to the Prime Minister at any time on the discharge of his functions. Annual reports, as we have said on many occasions, will be laid before Parliament.
I believe that that is sufficient. From what the noble Lord, Lord Williams of Mostyn, said, he will not press the amendment. But at least there is something on the record for the other place to consider.
Lord Mishcon: My Lords, perhaps I may say this to the Minister and the noble Lord, Lord Renton. Rather unusually they appear to have missed the point. The amendment has nothing to do with the periodic administration of the duties under the Bill which, rightly, will be reported upon to Parliament.
The Earl of Courtown: My Lords, perhaps I may remind the noble Lord, Lord Mishcon, that it is Third Reading. As I understand the procedures of the House, no one can speak after the Minister has replied.
Lord Mishcon: My Lords, I bow to a most unwelcome tradition.
Lord Williams of Mostyn: My Lords, I have been instructed by the noble Lord, Lord Mishcon, in the past. I respectfully agree with him. I always agree with him and am always deeply respectful to him. What was said in reply missed entirely the point that I made. That is understandable. However, I prefaced my remarks by indicating that it was not my intention to seek the opinion of the House or to press the amendment in its narrow form. I suggested that now was a sensible and suitable opportunity to have a brother inquiry to that carried out by the noble and learned Lord, Lord Lloyd of Berwick, in the Northern Ireland context in order to consider intrusions into privacy in this country.
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If one focuses upon police intrusion—we have the provision inevitably and necessarily in the Bill—one is in danger of becoming too narrow in focus. I know that the Minister has an enormous number of different amendments and different Bills to deal with at present. I simply floated the question whether now is the time to have a general inquiry on intrusive devices. Should they be licensed? Should they be controlled? They are increasingly sophisticated, as a number of noble Lords said. Is this the moment to have a compendious, wide-ranging inquiry of the kind that the noble and learned Lord, Lord Lloyd, so well carried out? It was never my intention to have another layer of bureaucracy. I am not in favour of bureaucracy as a general principle.
Those are the points that I put forward. None of them was responded to. Perhaps I spoke too quietly. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hilton of Eggardon Baroness Hilton of Eggardon moved Amendment No. 7:
After Clause 107, 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 information contained on a new certificate which is issued to him under section 107 and which contains the same information as the original certificate.
(2) The Tribunal may examine any information held on the applicant 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 Baroness said: My Lords, I address an issue which we considered previously at both the Committee and Report stages of the Bill. The amendment comes before your Lordships now in a slightly different form. We propose a criminal records tribunal. That was specifically excluded by the Minister on a previous occasion. However, I believe that we have not resolved the problem of someone who is supplied with an inaccurate or misleading certificate and may thereby lose a job opportunity. I realise that that person can appeal to the Secretary of State. But that is a meaningless formula. It is not clear what form the appeal procedure takes. If an applicant comes before a prospective employer for a job interview, an inaccurate certificate which the applicant wishes to challenge may well cast a cloud over the application. That person may well lose a job opportunity for which he is well suited. It seems essential that there should be a specific system for people who are issued with misleading certificates.
We know that in other fields people are blacklisted by credit companies because inaccurate information is supplied. We know too that the police criminal records

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computer is behind in logging new criminal records. There are many ways in which people may be issued with misleading or false certificates.
My concern is for the innocent person who is harmed by the new system. I am not concerned about the criminal or the person who has genuine convictions, but the innocent person who loses a job opportunity by failing to impress an employer because there may be some suspicion about the certificate. It seems essential to have a system of appeal which can resolve rapidly the problem of having a false certificate. It is not sufficient that a person can appeal to the Secretary of State for a new certificate. That is a meaningless formula. We need a system provided on the face of the Bill. If it is not a criminal records tribunal, it should be clear in what way people can redress what may be a grievous wrong which may affect the rest of their working life. I beg to move.
Lord Rodgers of Quarry Bank: My Lords, I support what has been said by the noble Baroness about the proposed new clause. At all stages of the Bill I have been concerned about what I believe will be the possibly fraught consequences of the implementation of Part V. I have been particularly concerned by Clause 103, which was originally Clause 100 and became Clause 102 on Report. I have argued for the omission of the provision of criminal conviction certificates or for the delay of the implementation of Clause 103. The Minister made helpful noises without being specific about her intentions when we discussed the matter late at night last week.
As the noble Baroness, Lady Hilton, rightly said, there is a danger that innocent persons will be harmed by errors which occur. By referring to Section 107, the amendment refers to all the relevant clauses in the Bill, Clause 103 onwards. We should not underestimate the extent to which an error in any certificate will cause distress. It will not be easy to remedy damage done.
The noble Baroness drew attention to the fact that the Bill provides that the Secretary of State shall consider any application. In other words the Secretary of State will consider whether an error has occurred. But many people who may be affected by the Bill, and by this provision if it becomes part of the statute, will not regard the Secretary of State as an independent person. We know from whom the certificates will come. Both innocent people and those who may have had cause to have something marked upon the certificate will not believe that the Secretary of State is wholly independent. Whether they are right or wrong will depend on the processes established to deal with appeals. However, I am sure that the public, and possible innocent persons, would be reassured if there were some procedure. Whether a tribunal is the right procedure I cannot say. But it is the only one before us, and I find it convincing. I hope that the Minister will consider that point very seriously. It does not affect the principle of the Bill, nor the effectiveness of these
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clauses. It simply ensures that if an error occurs there will be redress for an individual from somebody who is seen to be independent.
Lord Renton: My Lords, when this matter arose late at night at Report stage my noble friend Lady Blatch said that the criminal records tribunal,
"would be unwieldy, bureaucratic",
and added,
"and … would add yet more costs to the Bill'".—
[Official Report. 20/1/97; col. 540.]
I agree with her.
Clause 106 makes provision for the enhanced criminal record certificate to be issued to any individual. The provisions relating to that are very thorough. We know from experience that criminal records in this country are kept with very great accuracy, as are various other records with which we are familiar—drivers' records and so on. The administration deserves congratulations on the manner in which such records are kept. In the very rare circumstances when a mistake occurs, attention can be drawn to it without having to go to a tribunal. The amendment represents an excess of zeal. I hope that in the interests of the public broadly and because of the cost, my noble friend will resist the amendment.
5 p.m.
Baroness Blatch: My Lords, I welcome the opportunity to reiterate the Government's view on this matter. It is essential that the information contained on criminal conviction and criminal record certificates is accurate. That would be supported on all sides of the House. It would be wholly wrong if, for instance, someone's prospects of securing employment were disadvantaged by inaccurate information appearing on a certificate. There will therefore be administrative procedures as well as statutory safeguards which will enable that to be dealt with.
First, it will be necessary for applicants for certificates to prove their identity so that the records can be searched using the correct details. In the case of criminal conviction certificates, proof of identity will be sent with the application to the agency. For criminal record and enhanced certificates the counter-signing organisation will have checked identity before forwarding the application.
Once the records have been checked, if there is any doubt as to whether the details of a record "belong" to an applicant, the agency will be able to seek further confirmation of identity. If necessary a fingerprint check can be sought before a certificate is issued. It should normally be possible to resolve the matter in these cases before any certificate is issued.
However, if, once a certificate is received, an individual wishes to query its accuracy he will be able to do so under the provisions of Clause 107. That also represents an enormous improvement over existing practice. Save in very unusual circumstances where information might put at risk an ongoing investigation, the individual will know exactly what is reported about him. Where a certificate is challenged a thorough check

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will be carried out, including, if necessary, a fingerprint check. If an error is found, a new certificate will be provided to both the applicant and, where appropriate, the registered body. It is already accepted that fingerprints provide a reliable and accurate means of establishing identity. Central records are backed by fingerprint identification, and so, too, are many locally held records.
Chief constables will be responsible for the accuracy of criminal record information and, where locally held records are not backed up by fingerprints, they will need to be confident of the reliability of the match before issuing information for inclusion on an enhanced certificate. They will also be responsible for the release of any non-conviction information and for judging its relevance for the application in question. In doing so they will need to bear in mind the guidelines set out in Annex B to the White Paper, On the Record. This is not a new responsibility which is being placed on senior police officers. They already make such decisions under existing arrangements. Should information be provided by the police negligently, the individual may have a remedy against them.
In addition, there is a formal complaints procedure which an individual can use if he feels that he has been treated unfairly or improperly in any way by a member of a police force. That is laid down under Part IX of the Police and Criminal Evidence Act. The investigation and resolution of complaints is subject to the scrutiny of the independent Police Complaints Authority. Police officers are subject to a strict disciplinary code and face possible dismissal if found guilty of a serious breach of discipline.
There are also existing sanctions that could be taken against the Criminal Records Agency if an individual believes that he has been the victim of an injustice due to maladministration. The matter could be taken up with the Parliamentary Commissioner for Administration, who has wide-ranging powers to investigate a complaint and make recommendations to the government department concerned, including the suggestion that compensation be paid. If the commissioner feels that the department has not responded adequately to any recommendation, he is able to refer the matter to the Select Committee on the Parliamentary Commissioner for Administration, which can raise the matter on the Floor of another place.
As noble Lords will appreciate, that is a serious sanction which, wherever possible, government departments will wish to avoid. That is why, in the vast majority of cases, the commissioner's recommendations are normally accepted by the government department in question.
I do not understand from the amendment how the tribunal would be constituted; how it would be qualified to assess either the accuracy or the relevance of the information on the certificate; and on what basis it would award compensation. A single tribunal would have to cope with Northern Ireland, Scotland, Wales and England. If there was one tribunal for each of the four countries, that would be very difficult for people in parts of England to access, other than at great expense.
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If it was county based or district based, there would be many tribunals. We do not know from the amendment what is envisaged, nor from the way in which it was spoken to.
A criminal records tribunal along the lines proposed by the noble Baroness would be unwieldy—I repeat the words used by my noble friend—and bureaucratic. It would also be expensive to set up and operate. Although, given the vagueness of the amendment, it is difficult to quantify just how expensive it would be, if one imagines making it accessible to all the potential applicants for certificates, we are talking about a very substantial amount indeed. The cost would have to be borne either by those who were unsuccessful in their appeals—and I am sure that that is not what is meant by the amendment—or, if that was not feasible, all other users of the agency, who may well not be in a position to fund the extra cost, or the taxpayer. As noble Lords have already voted to waive the fees for millions of volunteers, that would add a considerable further financial burden on other users of the agency or on the taxpayer. I would ask the noble Baroness how it is proposed that the costs are met.
A complex structure such as this should not be necessary in order to ensure that individuals receive accurate criminal record certificates. We believe that they should. In speaking to the amendment, I outlined the remedies. I believe that all the checks and balances are there in the system and that a very speedy means of remedying incorrect information is addressed. This amendment takes a sledgehammer to crack a nut. For those reasons, I hope that the amendment will not be pressed.
Baroness Hilton of Eggardon: My Lords, the Minister relies heavily on Clause 107. The clause merely states that an applicant who believes that a certificate is inaccurate may make an application in writing to the Secretary of State. The Secretary of State will not deal personally with the objections to the inaccuracy of certificates. The Secretary of State will have to use a number of civil servants to process the applications. Inevitably, a department of state will develop to deal with these matters. That approach is just as bureaucratic and time-wasting as any suggestion for a separate tribunal.
The suggestion for a separate tribunal has the advantage that it would appear at least to lie outside the remit of the Secretary of State and therefore have some degree of apparent independence. There will be exactly the same number of complaints of inaccurate certificates under either system. Exactly the same number of people will be required to examine and process them and decide whether or not they are inaccurate. I do not see that our suggested solution is any more bureaucratic than what will inevitably happen within the department of state that will have to deal with disputes about the accuracy of certificates.
Nevertheless, this is not the stage at which to press such an amendment. I therefore beg leave to withdraw it.
Amendment, by leave, withdrawn.
Schedule 7 [Investigation of Complaints by Chief Commissioner etc.]:
[Amendment No. 8 not moved.]
An amendment (privilege) made.
5.10 p.m.
Baroness Blatch: My Lords, I beg to move, That this Bill do now pass.
It was clear from the outset of our proceedings that this Bill deals with many important issues: protecting the public by strengthening our ability to tackle serious and organised crime; striking the right balance between effective use of essential modern policing techniques and preserving traditional civil liberties; improving access to criminal records so that children and other vulnerable groups can be better protected. The detailed provisions of the Bill have been subject to the most thorough scrutiny. That is the proper, and in my view extremely valuable, role of this Chamber.
Parts I and II of the Bill create two new service authorities, modelled on police authorities, which will in future maintain the existing National Criminal Intelligence Service for the United Kingdom and the new National Crime Squad for England and Wales. In this way, the Bill creates co-ordinated national structures to combat serious and organised crime while preserving the essentially local character of policing in this country.
We gave careful consideration to the constitution of the two service authorities. I believe that the arrangements set out in the Bill for membership and chairmanship of the two authorities strike a sensible balance which reflects our local tripartite system of policing and the needs of national services. They also reflect the multi-agency nature of NCIS, which is so important to its success.
We have improved these parts of the Bill particularly as they affect the pension rights, discipline and rank structure of permanent police members, including the directors general, of both services.
There is universal recognition within the House that in the fight against serious and organised crime, the police and Customs must be able to conduct intrusive surveillance operations. There is also agreement that such operations should be put on a statutory footing.
At Report stage, the House voted for two different Opposition amendments which means that Part III of the Bill cannot sensibly become law as it now stands. It must be for another place to recognise that there was no clear view taken by this House on the issue and therefore there needs to be consultation with the police and others on the practicalities of any solution and for the other place to take a view on the way forward. The House will of course have a further opportunity to consider the matter.
The Government continue to regard as important two key principles. The first is that decisions about the use of intrusive surveillance are primarily operational matters which are properly the responsibility of chief officers. They have the training and expertise to judge the merits of using different operational techniques. It is absolutely right that their decisions should be subject to
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strict guidelines and rapid independent approval obtained in a way which does not involve second guessing of their operational judgment or significantly inhibiting the effectiveness of police operations against serious, organised crime. For example, the police must be able to act quickly in an emergency in order to protect public safety or sometimes even human life.
Secondly, those authorising these operations must be fully accountable for their decisions. Chief officers are already accountable to the courts, and the courts have in the past called them to account for their actions. We also believe that the proposed new commissioner will strengthen that accountability still further.
Part IV of the Bill has been less controversial. It places the Police Information Technology Organisation on an independent tripartite footing.
Our proposals for a new system of criminal conviction and criminal record checks will offer greater protection to vulnerable groups. The Bill already contained provisions for enhanced criminal record checks for those who work closely with children. We have amended the Bill to give the Secretary of State a statutory power to extend the scope of these checks to those who work with vulnerable adults. The proposals in Part V of this Bill will add clarity and coherence to the current system of criminal record checks. They will allow employers and voluntary groups to be confident that the information that they are given about an applicant's past is full and accurate. Equally importantly, they contain a number of vital safeguards to protect those about whom the information is being sought.
During our consideration of the Bill at Committee stage your Lordships approved amendments tabled by the noble Lord, Lord Weatherill, which exempt volunteers from paying any fee for criminal conviction or criminal record checks. The Government fully recognise the good work that is done by volunteers. Indeed, for some time I was Minister for Volunteering and I know the value of work done by volunteers. But, as I signalled during our debates, the amendments have substantial resource implications—perhaps up to £200 million. No one will know the extent of that cost because it is open-ended as a commitment to anyone who applies. We are still assessing those implications and will be inviting another place to consider how best to proceed. As I indicated during Report stage, it is likely that the Bill will have to be amended in another place to provide for checks by Ministers of the Crown other than the Lord Chancellor and to enable regulatory bodies to pass to one another criminal record information which has been provided to them.
Finally, I wish to thank all noble Lords who have contributed to our scrutiny of the Bill. We have had some late nights. I am especially grateful to my noble and learned friend the Lord Advocate who has offered me such tremendous and unstinting support. Certain sections of the media have referred to me as a lackey and my noble and learned friend the Lord Advocate as a sub-lackey and even as a pathetic functionary. Criticism of my noble and learned friend has not stopped there. In this House the noble Lord, Lord Hutchinson of Lullington, referred to my noble and learned friend as someone who may have had very little

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experience of the rough and tumble and often brutal realities of the world in which the police operate. All those criticisms could not be further from the truth. As the House knows, my noble and learned friend is well practised in criminal law, with some 25 years' experience. He is someone who commands enormous respect and integrity on both sides of the Scottish Border. He has my personal thanks and warm appreciation for his contribution and, I have to say, continuous wise counsel.
I should also like to thank my noble friend Lord Courtown who has provided a most energetic and responsive Whip for me on the Bill. He has supplied me with copious quantities of lemonade and chocolate to keep my energy up during the long evenings. I thank all my noble friends whose supportive contributions to our debates I greatly value.
I am also grateful to the noble Lord, Lord McIntosh, who was assisted at the Dispatch Box by his noble friends Lady Hilton and Lord Williams of Mostyn. He has presented his case with his usual vigour and good humour and I am not convinced that he requires much in the way of "top up" of his education on legal matters. Such is his performance that I find it very impressive indeed. I also wish to thank the noble Lord, Lord Rodgers of Quarry Bank, who, together with his noble friends Lord Lester of Herne Hill and Lord Thomas of Gresford, has played a prominent role in our debates.
The noble and learned Lord, Lord Browne-Wilkinson, has also played a prominent part. Although we have not always agreed, he has always been most courteous and quite rightly kept me on my toes.
I wish to conclude by saying that we have set the other place a challenge in finding a practical solution to the amendments passed at Report stage which envisage two different authorisation procedures. However, I want to take this opportunity to remind the House about the real purpose of Part III and the use of intrusive surveillance.
It is not unusual to see on our TV screens or hear on the radio of another success by the police and Customs in the fight against crime. Let me give some examples: a major drugs operation broken up and a large volume of drugs seized; the finding of a cache of arms or the recovery of firearms to be used to commit robberies or other violent crime; freeing a hostage whose life was in danger from ruthless criminals seeking to obtain a ransom. Those successes are not achieved by chance. They are the result of painstaking police work which may include the use of the intrusive surveillance techniques covered by Part III of the Bill. I strongly believe that whatever emerges from the consideration of this Bill in another place, we must be extremely careful to ensure that we do not thwart the efforts of the police to tackle major crime of this kind.
Moved, That the Bill do now pass.—(Baroness Blatch.)
Lord McIntosh of Haringey: My Lords, we now have the formalities out of the way and perhaps I can say to the noble Baroness that it is not a question of topping up my legal education; like her, I do not have any. But we both try to conceal that as best we can.
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The Minister is right in saying that this has turned out to be a much more controversial and important Bill than was originally intended. I am not sure that, had the Home Secretary realised the degree of controversy there would be on some of the measures in the Bill, he would have been quite so willing for it to start in this place. Be that as it may, I agree with the Minister that we have done our duty. We have taken the trouble to examine every part of the Bill and to understand and take a consistent view on its provisions.
Many parts of the Bill are relatively uncontroversial. We have always agreed with the strategy in Parts I and II for the strengthening of the ability of the police to fight serious crime which lies behind the establishment of the National Criminal Intelligence Service and the National Crime Squad. We have had differences in relation to the constitution of the governing bodies of those organisations but they were relatively minor, bearing in mind the overwhelming need—on which we are all agreed—for the effective combat of serious crime.
When we turn to the remainder of the Bill we see that part of the difficulty in which the Government have found themselves is that, having announced a programme of action in a political conference speech, the Home Secretary has been forced to divide up his legislative measures into a number of pieces and the relationship between them has not been entirely clear. We said at the time of the passage of the Security Service Act last year that it would have been better if the other part of the equation had been brought before Parliament at the same time. That has proved to be the case. The Security Service Act contained a number of controversial elements but, on the whole, it met with the approval of your Lordships. This Bill has brought out a number of specific issues which ought to have been debated at the same time as that Act. I refer in particular to the issue of intrusive surveillance.
I was somewhat amazed to hear the Minister say in her speech that no clear view was taken by this House on the issue of prior judicial authorisation. I believe an extremely clear view was taken by this House on the principle that there must be prior judicial authorisation. There were relatively minor—I emphasise this today as I emphasised it last week—differences in relation to the best method of achieving prior judicial authorisation. But on the issue of whether or not it should take place, your Lordships had heavy majorities against the Government which will stand us in good stead when the issue goes to another place. I should be surprised if Ministers in another place can turn their backs on the view of your Lordships' House. A majority of 64 against the Government is not peanuts. They will not be able to turn their backs on that view and, in the end, will have to recognise the justice of the case.
What that shows, I regret to say, is that the Minister still does not understand the difference between the principle of prior judicial authorisation of external control of the police in their ability to enter into a citizen's house and plant bugging devices, and operational details. Operational details we can discuss and argue about; the principle is there and remains so.

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The other important decision taken against the advice of the Government was on the Motion of the noble Lord, Lord Weatherill, to exclude volunteers from the fees to be charged under Part V. If I hear again the argument that it is an enormous increase in public expenditure, I shall have to remind the Government that the equivalent of criminal record certificates have always been supplied without charge to many people, not only volunteers. The only change being introduced is some regularisation and extension of the system and, above all, the principle that the provision of the certificates shall be self-financing. That was never there before. It is an attempt by the Government to put on to employers—particularly employers in connection with vulnerable children and adults—charges for a service which was previously provided without charge. I hope that my friends in another place will not listen with too much sympathy to exaggerated arguments about public expenditure.
In addition to those matters which were carried against the express wishes of the Government, a number of valuable changes have taken place as a result of concessions by the Government or a change of heart by them. They include the establishment of a body of commissioners; greater powers for the commissioners; and an extended remit for the commissioners which requires them to look at every authorisation speedily—those are all significant changes. Other changes include time limits and authorisations, where our amendments were overlapping and effective; parliamentary oversight for the code of practice, in response to the wishes of the Delegated Powers Scrutiny Committee; an undertaking, to which effect has not yet been given, to ensure that subject access under the data protection Acts will no longer be available. There must be many more examples which I should remember, but have not, of improvements which have been brought forward by the Government or will be brought forward as a result of pressure in this House.
Many unsatisfactory elements still remain in the Bill. By the narrowest of majorities—or by no majority at all—we still have an unsatisfactory position as regards legal professional privilege and excluded confidential communications. We still have too much secrecy and too many restrictions on the role of the commissioners. There are still amendments which ought to be tabled in relation to the role of the police authorities in the National Criminal Intelligence Service and the National Crime Squad. There is still a problem which we have not succeeded in resolving on what happens when there is inaccurate information on criminal record or conviction certificates.
Nevertheless, I repeat what I said at the beginning: this House has done its job and we must be grateful to those outside who have taken an interest. I refer, in particular, to the Association of Chief Police Officers and the Police Federation; to the Law Societies of England and Scotland; to the Bar Council and the Criminal Bar Association; the British Medical Association, the local authority associations, the National Council for Voluntary Organisations, Liberty and Justice.
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I thank sincerely and profoundly my noble friends Lady Hilton and Lord Williams of Mostyn for their support. I always enjoy working in a team like this and it is particularly enjoyable when we are able to support each other in the way that we have, all of us with other responsibilities. Also, despite the occasional acerbities between us, I thank the noble Lord, Lord Rodgers of Quarry Bank, for his collaboration and for the way in which, in the end, we found ourselves in agreement on the more important issues.
I reciprocate the kind words expressed by the Minister about my colleagues. The noble Baroness, Lady Blatch, and I have faced each other across the Dispatch Box on a number of occasions. Very shortly there may be some change in roles, which will be of interest. Even under extreme pressure I have always enjoyed working with her and I know that the respect I have for her will carry on as we continue to work together. I have also enjoyed working with the noble and learned Lord, Lord Mackay of Drumadoon, and the noble Earl, Lord Courtown.
The Minister said that sometimes she and her colleagues have been criticised by the media. I can assure her that they have been criticised nothing like as much as I have been criticised by the media in the course of the Bill—sometimes in the public prints by Members of your Lordships' House. She has not been called "contemptible", as I have. Sometimes that hurts and there has been quite a lot of it. However, the Bill is about to pass. It addresses serious issues and there are many respects in which it deserves major improvement. I hope that another place will not only respect your Lordships' wishes but will continue to improve the Bill.
Lord Rodgers of Quarry Bank: My Lords, I was going to remark, and I do it now with great confidence, that one of the characteristics of discussion of the Bill has been the good humour on all sides of the Chamber. We have certainly disagreed. Perhaps I should say, bearing in mind what the noble Lord, Lord McIntosh, said about collaboration and the reaction of the Minister this afternoon, that I was totally taken by surprise when the noble Lord raised the point that he did at the beginning of business. For that reason, it was a double whammy when I found that the Minister had conspired with the noble Lord not only to put me on the spot but to give me an opportunity to say something. The good humour of our discussions is something I shall carry away with me.
I do not want to comment at the same length as the noble Baroness and the noble Lord about the substance and purpose of the Bill. I wish only to say about the vote on the principle of judicial authorisation—a fairly important vote that your Lordships chose to make—that I am very open-minded about what form it will take. The amendment I moved was, I believe, the best way of achieving the purpose. The noble Lord, Lord McIntosh, takes his own view. I would not be dogmatic about the formula the Home Secretary eventually produces, given only that the principle is accepted. Once that has been done it is natural and proper for the Home Secretary to find the best way to implementation consistent with the purposes of the Bill.

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From time to time the police have expressed their anxiety and fear that our wish for judicial authorisation was in some way a reflection on them. I do not believe that that was in your Lordships' minds. Without covering the ground again, I say only this. I believe that, loyally as they do their job and carry out their responsibilities under statute, the police are already turning their mind to how best to implement the decision made by your Lordships' House. If the Home Secretary discusses the matter with the police, particularly with the chief constables, he will find them ready to come up with a solution—perhaps a gloss on either of the amendments carried by your Lordships—so that the Bill can eventually pass in such a way to enable them to carry out their necessary and difficult operations, but under judicial authorisation.
I wish to make only one other point about the progress of the Bill. It is certainly true that it has been subject to scrutiny. All of us who look forward to the reform of your Lordships' House will nevertheless say that the role played by the Cross Benches and by the Government Back Benches was a very important one on virtually all issues before the House. Whatever the future of your Lordships' House may be, I hope that there will be room for Cross-Benchers with minds of their own who are prepared to speak for and against the Government of the day, of whatever complexion, and also Back Benchers of the Government of the day who will feel able, from time to time when appropriate, when the spirit moves them and when the issue is large enough, to criticise their own Front Bench. If we have in your Lordships' House, as a result of reform, only yes men and women, it will be a much poorer place in its legislative role.
We spent many hours examining the clauses of the Bill but there was one period of three-and-a-half hours on Report late at night when I do not believe we adequately fulfilled our role of scrutiny. I raised at that time, and mention now in passing, the report of your Lordships' Procedure Committee of two years ago, confirmed in a report of your Lordships' committee published on 2nd December last year, about not continuing after ten o'clock except when circumstances seriously and urgently require it. I put that thought not in order to provoke any response today—that would be inappropriate—but I think that we should seek to ensure, if we are to continue to scrutinise Bills in the way they should be scrutinised, that matters of great importance to our country, and of equally great importance to those outside who are concerned, as the noble Lord, Lord McIntosh, rightly said, with the progress of such a Bill, should be properly dealt with. It was 1 a.m. when I moved an amendment which attempted to exempt child minders from the fees that would be charged under Part V of the Bill. Whether such an amendment was carried or whether such an amendment was acceptable it would be inappropriate to argue today. But such an amendment should not be discussed at 1 a.m. if we are to be seen by everyone and by all those organisations outside as properly doing our job.
For me this has been a congenial Bill, one of some excitement and a good deal of hard work. But no one has worked harder than the noble Baroness,
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Lady Blatch. No one, least of all myself, has ever regarded her as a lackey. She is a servant of her office. I do not believe that the Home Secretary could be served better by anyone in this House than the noble Baroness in the manner she has served him on this Bill and on other legislation.
I pay tribute also to the noble Lord, Lord McIntosh, whose assiduous pursuit of so many issues is a source of admiration to many of us. I wish I had his capacity to comprehend a Bill, because I, like him, have no legal qualifications. He learnt before my arrival in the House because his competence has been shown not only on this but on many other occasions. My pleasure in taking part in the debates has been heightened by the participation also of the noble Baroness, Lady Hilton.
As for my own colleagues, my noble friend Lord Thomas of Gresford is a relatively new Member of your Lordships' House, but I think your Lordships will agree that at all stages he contributed with great distinction; and again we learnt from him. We learnt, as always, from my noble friend Lord Lester.
I have enjoyed the proceedings on the Bill. It is an immensely important one. It was thought to be a mouse of a Bill when it started. It turned out to be a mouse that roared.
Lord Renton: My Lords, first, I should like to join in the tributes paid by the noble Lord, Lord Rodgers of Quarry Bank, to my noble friend Lady Blatch. She has had a very difficult task. She has kept calm and has remained lucid. We owe her a great debt of gratitude. I wish also to endorse what the noble Lord, Lord Rodgers, said about the composition and activities of your Lordships' House. We do not play the party game so much here. We have immense talent and expertise among us, and if I may dare to say—I hope it is not out of order for me to do so—talent and expertise of a kind which one would never find if we were a democratically elected Chamber.
As the noble Lord indicated, and as my noble friend Lady Blatch made clear, in spite of the great qualities of your Lordships' House, we have created a chaotic situation with regard to Part III of the Bill. We now have three possible solutions before us. In Clause 91 we have the view put forward with great sincerity by the Labour Party. I believe that the noble Lord, Lord McIntosh, deserves the compliment which my noble friend Lady Batch paid him. He and the noble Lord, Lord Rodgers, are not lawyers, but they have performed with great clarity and sincerity although I disagree with them. Parts I and II of the Bill occupy the first 90 clauses. They are very valuable and largely agreed.
Perhaps I may quickly consider Part III of the Bill. As I was saying, Clause 91 put forward by the Labour Party makes a former, or even a present, High Court judge the person responsible for giving prior authorisation. In Clause 92 we have the Liberal Democrat suggestion that it should be a circuit judge who does so. Both those proposals have to be regarded in the light of the speech made by the noble Lord, Lord Knights, which was one of the most important speeches made during the discussion of these matters at Report

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stage. He pointed out that if the police are to be effective in preventing and deterring the serious crime to which the Bill refers, they have to act speedily. To refer a matter to a circuit judge or a High Court judge—there will not be a great many commissioners—will be a self-defeating exercise.
In my opinion, the Government had just the right solution. They said, "Let the chief constable or other authorised person, who has the practical responsibility of dealing with the matter, take a responsible decision and report it at once to a commissioner". That seems to me to give the best of both worlds. It has the advantage of speedy action and the avoidance of delay. It also has the advantage of judicial authority because if the commissioner, after consideration of the matter, does not approve, he can do something about it under the Government's amendments.
When the matter goes to another place, Part III of the Bill has to be amended drastically. We cannot have three possible solutions for dealing with the same problem. I hope that the Labour Opposition and the Liberal Democrats, after further reflection on these matters, will realise that the Government's proposals give the best of both worlds. I hope that the other place can be persuaded to follow that.
I hope that what I have to say now will not be considered irrelevant. Thirty-nine years ago this month I became Under-Secretary at the Home Office. Soon after it was discovered that the police were already doing telephone tapping. There was a mild outcry about it, but the Home Secretary of the day, Mr. R.A. Butler (as he then was) consulted the chief officers of police. It was decided that before any telephone tapping was done there should be the consent of the Home Secretary. Therefore, I was very surprised when the noble Lord, Lord Callaghan, who is an old friend for whom I have great respect, and my noble friend Lord Carr of Hadley, both seemed to be so surprised that these things had been happening in their own time as Home Secretaries, with bugging and so on.
What is put forward in this Bill is not being advanced to deal with a very new situation. It is to deal more formidably than in the past with police practices which have become established to some extent. An Englishman's home is his castle, but he forfeits the right to have it as such if he is using it for manufacturing explosives, carrying on the drug trade, and doing nefarious things which Parliament has decided to stop. Therefore, I hope that, on further consideration of this Bill in another place, there will be a little more open-mindedness on the part of the Opposition.
Lord Hacking: My Lords, as a misbehaving but penitent Back-Bencher, I should like to make a brief intervention before we resolve that this Bill do now pass. I was unable to participate either at Second Reading or Committee stages. Therefore, I would like to say a few words about the Bill as a whole and a very few words about Part III. Before I do so I should like to join my noble friend and all noble Lords from all sides of the House in expressing congratulations and gratitude for the noble and successful efforts of the police to
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combat crime. I endorse entirely the remarks of my noble friend when she said that we should be doing nothing to thwart the police in these important and noble efforts.
Turning to the Bill as a whole, we should be grateful for it. There is a great deal of good in Parts I and II of the Bill. They are largely uncontroversial and stretch over no fewer than 90 clauses. I welcome the establishment—as noble Lords have at earlier stages of the Bill—of the National Criminal Intelligence Service, the National Crime Squad and the Police Information Technology Organisation. We should also express gratitude for the concessions that have been made by my noble friend the Minister. They are not easily obtained. I am very grateful, as I am sure noble Lords are throughout the House, for the concessions that have been made and the amendments that the Government have themselves placed in the Bill.
That moves me to Part HI of the Bill. Clearly, as my noble friend the Minister said, it cannot be enacted in its present form. My noble friend Lord Renton has described it as being a chaotic situation. However, I am a little troubled by my noble friend the Minister saying that no clear view has been expressed by this House. I was one of the troublemakers in voting for both the amendments. There was the very clear view of the House that there should be pre-authorisation of surveillance. It was the process of that authorisation where the differences lay. My noble friend the Minister is unable to concede it at this stage, but I hope that the Government will concede that that is the very clear expression of your Lordships' House.
My noble friend Lord Renton has already argued in some detail about the deficiencies in the Labour Party amendment to Part III of the Bill. I believe that the noble Lord, Lord McIntosh, is now beginning to concede that there is a functional difficulty—
Lord McIntosh of Haringey: My Lords, no!
Lord Hacking: The noble Lord is not conceding—alas! I shall just have to make the point and leave it there. In his amendment the commissioner is involved in the authorisation process because he has to approve the process under the new Clause 91(1). He is then under a statutory duty to review the functions which he himself may have performed. I agree with my noble friend the Minister that that is a case of the reviewer reviewing the reviewer. It seems to me, therefore, that not only do we have a situation which my noble friend describes as "chaotic"—namely, two amendments not running together—but the amendment of the noble Lord, Lord McIntosh, cannot stand on its own.
I also believe that there are difficulties with the amendments moved by the noble Lord, Lord Rodgers. Those difficulties have been highlighted. One relates to the number of judges that would be involved in the authorisation process. I believe that in excess of 500 circuit judges might be involved. The other difficulty that has been pointed out relates to the tagging of vehicles, which, under the amendment moved by the noble Lord, Lord Rodgers, would also need approval because the noble Lord did not further define his

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provisions, as did the noble Lord, Lord McIntosh, in terms of property in premises. So, there are difficulties with regard to both amendments.
It was for that reason that I wrote to the Home Secretary. I gave copies of my letter to my noble friend the Minister and to the noble Lords, Lord McIntosh and Lord Rodgers. In that letter I made a proposal which I hope that my right honourable friend the Secretary of State will consider. I should give credit for the original authorship of the proposal. It was no less a person than the noble Lord, Lord Williams of Mostyn, who suggested that the authorisation should be obtained from one of the circuit presiding judges. I have forgotten the exact number of circuits into which barristers are grouped, but I believe that it is in the region of five and that there are two presiding judges of each circuit. I am looking towards the noble Lord, Lord Lester, to see whether he can help me, but he is unable to do so.
As I have said, I believe that there are in the region of five circuits, with two presiding judges of each. That would narrow the number of persons involved in the authorisation process. They would be familiar with the applications made under the Act. Therefore, one would have continuity of purpose and persons who would understand the operational needs of the police. Thus, they would be persons who would be more familiar with the process and, above all, less thwarting of it. Does the noble Lord, Lord Lester, want to intervene?
Lord Lester of Herne Hill: My Lords, I take advantage of the fact that the noble Lord, Lord Hacking, looked at me and named me to ask him a question. Does he agree that if, by whatever mechanism, other countries
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in common law jurisdictions are able to designate judges to deal urgently with authorisations—apparently all other common law jurisdictions that we have considered can do so—judges here will be able to act with the same urgency in dealing with this kind of authorisation as with granting ex-parte mareva or interlocutory injunctions or warrants for the inspection of bankers' books? Does the noble Lord see any reason why designated judges could not act with the same urgency and speed as in all those other ex-parte matters?
Lord Hacking: My Lords, the noble Lord is skilful. He has not only asked a question, but provided the complete answer. The answer lies in already established practices under our civil law and, indeed, under writs of habeas corpus, which goes also to our criminal law and certainly to the freedom of the individual. The answer is that judges are available 24 hours a day. Judges receive applications late into the night and, I am sure, early in the morning. I am a "doctor's wife" and am used to the telephone ringing at two o'clock in the morning. I am sure that judges would accept that form of intrusion in important cases. There would be a duty judge. I am sure that the judiciary would respond to that.
That is the important point that I wanted to make on Part III of the Bill. As I have given acknowledgement of the original authorship to the noble Lord, Lord Williams of Mostyn, I hope that the proposal will have the total support of the noble Lord, Lord McIntosh, and others on the Front Benches opposite.
On Question, Bill passed, and sent to the Commons.
House adjourned at six minutes before six o'clock.