§ 7 Leave out Clause 91
§ Baroness BlatchMy Lords, I beg to move that the House do agree with the Commons in their Amendment No. 7 to Part III of the Bill. I should like to speak also to Amendments Nos. 8 to 68 and 108 to 120. These amendments are of more substance.
I do not believe that there is any dispute about the need for the police and Customs to use intrusive surveillance techniques against serious and organised criminals. These techniques must be available to the police and Customs if they are to gain the vital intelligence necessary to disrupt and bring to book our most dangerous criminals.
A great deal has been said about the provisions of Part III of the Bill. Debate in this House confirmed the extent of the concerns evident at the Government's original proposals for chief officer authorisation and independent oversight by a surveillance commissioner. I have to say that some of the concerns were unfounded and I cannot agree with them. But the will of this House was made very apparent with the passing of contradictory amendments. We have therefore taken Part III away and applied detailed consideration to the most effective way of returning the Bill to a workable condition. My right honourable friend the Home Secretary announced a number of modifications to Part III in advance of Second Reading in another place. These modifications have been discussed and approved. Part III has therefore been effectively rewritten. But I hope these modifications will serve to illustrate to this House our commitment to provide further safeguards to meet the concerns of this House, while ensuring a system which enables the police and Customs to be able to continue to get the benefit of these techniques so necessary to the fight against organised crime into the next millennium.
We could not accept the amendment approved in the name of the noble Lord, Lord Rodgers. This would have required all intrusive surveillance to have the prior authorisation of a circuit judge. We could not accept that judges can properly be expected to make these decisions. But there are other difficulties. Accountability would be reduced: judges cannot be called to account in the same way as chief officers. Furthermore, the absence of provisions for urgent cases would seriously inhibit the fight against serious crime. It could even endanger life, and I think particularly of hostage situations in which an immediate response can be vital.
1106 The amendment approved by this House in the name of the noble Lord, Lord McIntosh, does not present quite the same difficulties. My right honourable friend the Home Secretary has responded positively in another place by modifying this amendment to produce a system of authorisation which builds upon existing accountability arrangements, leaves operational decisions to those best qualified to take them and provides for effective independent scrutiny.
Amendment No. 36 builds upon the amendment in the name of the noble Lord, Lord McIntosh, and requires that the prior approval of a commissioner be obtained before an operation begins in the most sensitive categories of case. These circumstances will include cases in which there are reasonable grounds for thinking that the operation authorised under Part III could involve intrusion into dwellings, offices or hotel bedrooms or could affect legal privilege, confidential personal information (including spiritual counselling and medical consultations) and confidential journalistic material. The Government have added definitions of legal privilege and the other prescribed categories for the purposes of Part III in Amendments Nos. 37, 38 and 39. These definitions are based on those which exist under the Police and Criminal Evidence Act 1984.
Prior approval will not be necessary in urgent cases, but the commissioner would have to be notified as soon as reasonably practicable after the authorisation had been given. He will able to quash the authorisation if he is not satisfied with the reasons given for considering the case one of urgency.
Government amendments approved in another place also provide for authorising officers and complainants to appeal to the Chief Commissioner against decisions taken by commissioners. On reflection, we have taken the view that there should be avenues of appeal for authorising officers or complainants to challenge what they consider to be unreasonable decisions taken by commissioners. Amendments Nos. 48, 49 and 50 provide the necessary mechanism for the making and consideration of these appeals which represent a further significant safeguard.
The addition of this appeals mechanism is one of the considerations which requires a clear demarcation to be drawn between the responsibilities of the chief and the other commissioners appointed for the purposes of Part III. Amendments to Clause 98 therefore clarify that the commissioner shall keep under review the performance of functions under Part III. This is a crucial point. The Chief Commissioner will not be responsible for day-to-day approval of authorisations or investigation of complaints. These are functions of the commissioners.
The Government have responded positively in another place to the concerns raised in this House. What has resulted is an effective system for the authorisation of these operations by those best qualified to make these operational decisions, with the addition of a number of effective safeguards. I commend these amendments to this House.
1107 Moved, That the House do agree with the Commons in their Amendment No. 7.—(Baroness Blotch.)
§ Lord McIntosh of HaringeyMy Lords, we are all grateful to the Minister for the clarity with which she has introduced these complex amendments. As the House will know, they occupied a great deal of time when the Bill was before this House and a considerable amount of time when the Bill was considered in the Commons, and particularly when it was in Committee there.
The Minister was generous enough to acknowledge that it had been necessary to build upon rather than reverse the amendments in my name that had been carried by the House. She is right to point out the complexity of the issues. That is apparent from the complexity of the amendments that have been passed by the Commons. Indeed, when I compare the complexity of these amendments with the relevant simplicity of my own I acknowledge that the drafting of legislation from scratch is not one of my strengths.
There are still areas in which we can take exception to what is being done. Referring to the important Amendment No. 36, I regret that the restriction of the location of intrusive surveillance is as great as it is. I do not believe that it makes very good sense to include in judicial authorisation office premises without including other places of work. Our intention was to have a wider remit for judicial authorisation. I do not believe that the restriction relating to office premises will work very well.
I acknowledge that the amendments now spell out in very much greater detail than we did the enormously important issues of legal privilege, confidential personal information and confidential journalistic information. These are important changes to the Bill that bring it into line with international legislation, which I am still convinced the original Bill would not have achieved. I am sorry that the noble and learned Lord, Lord Browne-Wilkinson, who played such a distinguished part in the deliberations of these amendments, is not in his place. I believe that we should all pay tribute to him for his persistence, clarity and grasp of the fundamental principles of civil liberty which infused his contribution. I believe—I hope he agrees—that they have resulted in a satisfactory outcome.
I turn to the amendments dealing with complaints and appeals. It is necessary that there should be an opportunity for appeals by authorising officers, and they are provided for in Amendments Nos. 48 and 49. I welcome the fact that Amendment No. 50, which introduces a new clause, allows for appeals by complainants on a much wider basis than the very limited judicial review procedures provided in the original Bill. At the time I believed that the least valid complaint about our amendments was that the commissioner who authorised surveillance in the first place would be in difficulty because he would also be responsible for review. I felt that that could be overcome by the provision of a body of commissioners. I tabled amendments comparable with those of the Government to ensure that there would be a body of commissioners, 1108 thus avoiding a potential conflict of interest. By their amendments to Clauses 96 and 98 the Government have ensured that the separation of responsibility between initial authorisation and overall review is secured by distinguishing between the role of the commissioner and that of the Chief Commissioner. That seems to us to be a satisfactory outcome.
All in all, without wanting to appear in any way triumphalist I believe that the concerns of the House, so overwhelmingly expressed on the vote on my amendments, as the Bill was originally before your Lordships have been fairly met by the Government. I thank them and congratulate them on producing a Bill which, in this respect, is a substantially better one than that originally put before us.
§ Lord Rodgers of Quarry BankMy Lords, on the eve of Prorogation we on these Benches would have most welcomed amendments that set aside Parts II and III, which we are now discussing, and Part V for further reflection and consultation in the knowledge that, when that had taken place, they could be brought back in a separate Bill before the end of the calendar year. That is not the case. We must therefore turn our minds to the amendments before us.
I too welcome the acceptance by the Government of the principle of judicial authorisation. Although the Government have chosen to substitute the word "approval" for "authorisation", I do not mind such a cosmetic change (which I believe to be semantic) if it enables them to do what this House judges to be right. I welcome the changes that have been made. I am glad that the Government recognised the force of opinion in this House and, more importantly, that the force of opinion reflected what was right.
The noble Lord, Lord McIntosh of Haringey, referred to one matter of disagreement in terms of the amendments which were carried by this House: the role of the commissioners. I too welcome the change which I understand is embodied in some of the amendments that we are now discussing. But it remains to be seen whether the distinction between the Chief Commissioner and the remaining commissioners is sufficient to ensure that those who approve—which I understand means "authorise"—electronic surveillance will not be those who review it. Time will tell. We welcome the amendment, but that is one matter that we will want to monitor.
Equally, we shall want to watch very closely how Amendment No. 36 works. When the original amendment of the noble Lord, Lord McIntosh, was moved in this House I was concerned about whether the door was being left wide open for the emergence of provisions to enable the Police Service—I make no criticism—to decide to go ahead with electronic surveillance without turning to one of the commissioners or (as I would prefer) a High Court judge. If the amendment closes that gap, we should be delighted; but we shall want to watch very carefully how many of the authorisations go forward without judicial approval in the light of experience. We still believe that approval by a High Court judge is better. We regret that the proposals were not made in the original legislation. 1109 Having said that, we welcome the changes. I too am grateful to the noble Baroness for making the changes so specific and clear to the House this afternoon.
§ The Lord Bishop of RiponMy Lords, I should like to speak to Amendment No. 38, to which the Minister has already spoken. The provision in the Commons amendment, which appears as subsection (2)(b) of the new clause, refers to spiritual counselling or assistance. This has given the Church of England serious cause for concern. I stress that it also affects other Christian churches and religions other than Christianity.
As I understand it, agreement has been reached with the Secretary of State and the police authorities that surveillance under the Bill should not breach the seal of the confessional and that that would be reflected in the code of practice. However, the Church of England and representatives of the Free Churches have pointed out that very much the same considerations apply to other cases where a person is receiving spiritual counselling from a priest or minister, even though that does not amount to the sacrament of confession in the strict sense.
Within the Church of England less use is made of the confessional than within the Roman Catholic Church and spiritual counselling is widely used. The same is true of the Free Churches. The Government were therefore asked to deal with cases of spiritual counselling in the code of practice along similar lines to the seal of the confessional in the narrow sense. We appreciate that the precise wording would need to be considered very carefully. We also appreciate that "spiritual counselling or assistance" is a very broad expression and that some cases which fall within it may qualify for a different degree of protection from surveillance than other cases.
The Minister has already referred to the Police and Criminal Evidence Act 1984. Under that Act, the police cannot require documentary material about spiritual counselling sessions to be handed over. With regard to the Bill, the Churches are deeply concerned about the possibility of spiritual counselling being subject to surveillance. What has been done in response to that concern, although it was not what the Churches asked for, is to include subsection(2)(b) in the Bill. That does not meet the Churches' concern because it merely requires surveillance which may yield information relating to spiritual counselling or assistance to be approved by a commissioner, unless the case is urgent. The commissioner cannot refuse approval just because the case involves spiritual counselling if the basic requirements for surveillance under the Bill are satisfied.
We are concerned also about the drafting of the provision which has been lifted from a different context in other legislation and which we believe is not appropriate, as it stands, in the Bill. For instance, it refers to information relating to spiritual counselling and not what is actually said during the spiritual counselling session. However, our chief concern is that it could be argued that the provision in the amendment is a clear indication that surveillance affecting matters covered by spiritual counselling can take place under the Bill, 1110 and thus that a provision in the code of practice of the kind that we are seeking would be inconsistent with what is provided in the amendment.
If that is the case, I have to express my opposition to subsection (2)(b). The assurance for which the Churches are looking is that the appearance in the amendment of that provision does not close off the option which we are seeking through the code of practice. I hope that the Minister will be able to give that assurance.
§ 6 p.m.
§ Lord EltonMy Lords, I await my noble friend's reply to that penetrating criticism with interest. I hope that it is as reassuring as I expect. I should like to join in the thanks that have been expressed to my noble friend the Minister not just for her explanation of what is involved here but for the way in which the Government have cleverly arrived at a satisfactory solution to almost all the concerns that have been expressed. In particular, given that individual judges while serving are not the proper source of the authority which is needed for a commissioner, the combination of having them recruited from among those who have held high judicial authority and, if it is not possible to take the appointment completely out of politics, then to restrict the grounds for which dismissal may take place as narrowly as has been done in the Bill, is a welcome and satisfactory solution. The only improvement beyond that for which one could ask would be an extension of an appointment beyond three years. But I, for one, am satisfied with what has been done.
§ Baroness BlatchMy Lords, first, I thank all noble Lords for the way in which they have accepted these changes. That was due in large part to the initiating work done by the noble Lord, Lord McIntosh of Haringey, and my noble friend Lord Elton and my noble friend Lord Can, who is not with us today, and others who spoke so forcefully in this House. Perhaps I may say to the right reverend Prelate that I thank the Church for giving me notice that this question was to be raised on the Floor of the House today. I am happy to confirm that Amendment No. 38 does not preclude fuller discussion of spiritual counselling in the code of practice.
The provision is deliberately drawn widely and protects a range of different circumstances, so I would expect the ensuing discussions to include many examples that were given by my noble friend—of course at this stage without prejudice to the outcome of those discussions.
The draft code of practice refers already to a specific undertaking by the police and Customs not to mount operations which would affect the seal of confession. It may be that other particular forms of spiritual counselling need to be addressed in particular ways, but we do not need to discuss the code in detail this afternoon. It remains a draft. There will be an opportunity for full discussions with interested parties before a revised version is laid before Parliament. It will not come into force unless approved by both Houses. The authorisation of intrusive surveillance operations 1111 under the Bill cannot begin until the code has been approved. There is therefore every opportunity for further discussion of what it should contain.
§ The Lord Bishop of RiponMy Lords, perhaps may just express my thanks to the Minister for her reply. I am extremely grateful for what she has said.
§ On Question, Motion agreed to.