HL Deb 20 March 1997 vol 579 cc1111-20

8 After Clause 91, insert the following new clause—

EFFECT OF AUTHORISATION UNDER PART III

(". No entry on or interference with property or with wireless telegraphy shall he unlawful if it is authorised by an authorisation having effect under this Part.")

9 Clause 92, page 34, leave out lines 34 to 36.

10 Page 34, line 37, leave out ("circuit judge") and insert ("officer").

11 Page 35, leave out lines 3 to 12 and insert—

("(3) This subsection applies where the authorising officer believes—

  1. (a) that it is necessary for the action specified to be taken on the ground that it is likely to he of substantial value in the prevention or detection of serious crime, and
  2. (b) that what the action seeks to achieve cannot reasonably be achieved by other means.").

12 Page 35, leave out lines 13 to 34 and insert—

("(4) An authorising officer shall not give an authorisation under this section except on an application made—

  1. (a) if the authorising officer is within subsection (5A)(a) to (e), by a member of his police force,
  2. (b) if the authorising officer is within subsection (5A)(f), by a member of the National Criminal Intelligence Service,
  3. (c) if the authorising officer is within subsection (5A)(g), by a member of the National Crime Squad, or
  4. (d) if the authorising officer is within subsection (5A)(h), by a customs officer.").

13 Page 35, line 43, at end insert (", and, where the authorising officer is within subsection (5A)(h), it relates to an assigned matter within the meaning of section 1(1) of the Customs and Excise Management Act 1979.").

14 Page 35, line 43, at end insert—

("(5A) In this section "authorising officer" means—

  1. (a) the chief constable of a police force maintained under section 2 of the Police Act 1996 (maintenance of police forces for areas in England and Wales except London);
  2. (b) the Commissioner, or an Assistant Commissioner, of Police of the Metropolis;
  3. (c) the Commissioner of Police for the City of London;
  4. (d) the chief constable of a police force maintained under or by virtue of section 1 of the Police (Scotland) Act 1967 (maintenance of police forces for areas in Scotland);
  5. (e) the Chief Constable or a Deputy Chief Constable of the Royal Ulster Constabulary;
  6. (f) the Director General of the National Criminal Intelligence Service;
  7. (g) the Director General of the National Crime Squad; or
    8. 1112
  8. (h) the customs officer designated by the Commissioners of Customs and Excise for the purposes of this paragraph.").

15 Page 35, line 46, leave out ("(6)") and insert ("(5A)").

16 Clause 93, page 36, line 20, leave out ("92(6)") and insert ("92(5A)").

17 Page 36, line 24, leave out ("92(6)") and insert ("92(5A)").

18 Page 36, line 27, leave out ("subsection (2) or).

19 Page 36, line 29, leave out ("(6)") and insert ("(5A)").

20 Page 37, line 12, leave out ("92(6)") and insert ("92(5A)").

21 Page 37, line 17, leave out ("92(6)") and insert ("92(5A)").

22 Page 37, line 20, leave out ("92(6)") and insert ("92(5A)").

23 Clause 94, page 37, line 22, leave out from ("except") to end of line 24 and insert ("that in an urgent case an authorisation (other than one given by virtue of section 93) may be given orally.").

24 Page 37, leave out line 28, and insert ("72 hours beginning with the time when it took effect").

25 Page 37, line 29, leave out ("six") and insert ("three").

26 Page 37, line 30, leave out ("was given") and insert ("took effect").

27 Page 37, line 31, leave out ("the day on which").

28 Page 37, line 35, leave out ("six") and insert ("three").

29 Page 37, line 35, leave out ("that day") and insert ("the day on which it would cease to have effect.").

30 Page 37, leave out lines 40 to 42.

31 Page 37, leave out from beginning of line 44 to end of line 8 on page 38.

32 Page 38, line 10, leave out ("92(6)") and insert ("92(5A)").

33 Page 38, line 15, leave out ("92(6)") and insert ("92(5A)").

34 Page 38, leave out lines 16 and 17.

35 After Clause 94, insert the following new clause—

NOTIFICATION OF AUTHORISATIONS ETC

(".—(1) Where a person gives, renews or cancels an authorisation, he shall, as soon as is reasonably practicable and in accordance with arrangements made by the Chief Commissioner, give notice in writing that he has done so to a Commissioner appointed under section 96(1)(b).

(2) Subject to subsection (3), a notice under this section shall specify such matters as the Secretary of State may by order prescribe.

(3) A notice under this section of the giving or renewal of an authorisation shall specify—

  1. (a) whether section (Authorisations requiring approval) applies to the authorisation or renewal, and
  2. (b) where that section does not apply by virtue of subsection (3) of that section, the grounds on which the case is believed to be one of urgency.

(4) Where a notice is given to a Commissioner under this section, he shall, as soon as is reasonably practicable, scrutinise the notice.

(5) An order under subsection (2) shall be made by statutory instrument.

(6) A statutory instrument which contains an order under subsection (2) shall not he made unless a draft has been laid before, and approved by a resolution of, each House of Parliament.").

36 Insert the following new clause—

("Authorisations requiring approval

AUTHORISATIONS REQUIRING APPROVAL

—(1) An authorisation to which this section applies shall not take effect until—

  1. (a) it has been approved in accordance with this section by a Commissioner appointed under section 96(1)(b), and
  2. (b) the person who gave the authorisation has been notified under subsection (4).

(2) Subject to subsection (3), this section applies to an authorisation if, at the time it is given, the person who gives it believes—

(a) that any of the property specified in the authorisation—

  1. (i) is used wholly or mainly as a dwelling or as a bedroom in a hotel, or
  2. (ii) constitutes office premises, or

(b) that the action authorised by it is likely to result in any person acquiring knowledge of—

  1. (i) matters subject to legal privilege,
  2. (ii) confidential personal information, or
  3. (iii) confidential journalistic material.

(3) This section does not apply to an authorisation where the person who gives it believes that the case is one of urgency.

(4) Where a Commissioner receives a notice under section (Notification of authorisations etc) which specifies that this section applies to the authorisation, he shall as soon as is reasonably practicable—

  1. (a) decide whether to approve the authorisation or refuse approval, and
  2. (b) give written notice of his decision to the person who gave the authorisation.

(5) A Commissioner shall approve an authorisation if, and only if, he is satisfied that there are reasonable grounds for believing the matters specified in section 92(3).

(6) Where a Commissioner refuses to approve an authorisation, he shall, as soon as is reasonably practicable, make a report of his findings to the authorising officer who gave it or in whose absence it was given (and paragraph 5 of Schedule 7 shall apply for the purposes of this subsection as it applies for the purposes of that Schedule).

(7) This section shall apply in relation to a renewal of an authorisation as it applies in relation to an authorisation (the references in subsection (2)(a) and (b) to the authorisation being construed as references to the authorisation renewed).

(8) In this section—

"office premises" has the meaning given in section 1(2) of the Offices, Shops and Railway Premises Act 1963;

"hotel" means premises used for the reception of guests who desire to sleep in the premises.").

37 Insert the following new clause—

MATTERS SUBJECT TO LEGAL. PRIVILEGE

(".—(1) Subject to subsection (5) below, in section (Authorisations requiring approval) "matters subject to legal privilege" means matters to which subsection (2), (3) or (4) below applies.

(2) This subsection applies to communications between a professional legal adviser and—

  1. (a) his client, or
  2. (b) any person representing his client,
which are made in connection with the giving of legal advice to the client.

(3) This subsection applies to communications—

  1. (a) between a professional legal adviser and his client or any person representing his client, or
  2. (b) between a professional legal adviser or his client or any such representative and any other person,
which are made in connection with or in contemplation of legal proceedings and for the purposes of such proceedings.

(4) This subsection applies to items enclosed with or referred to in communications of the kind mentioned in subsection (2) or (3) and made—

  1. (a) in connection with the giving of legal advice, or
  2. (b) in connection with or in contemplation of legal proceedings and for the purposes of such proceedings.

(5) For the purposes of section (Authorisations requiring approval)—

  1. (a) communications and items are not matters subject to legal privilege when they are in the possession of a person who is not entitled to possession of them, and
  2. (b) communications and items held, or oral communications made, with the intention of furthering a criminal purpose are not matters subject to legal privilege.").

38 Insert the following new clause—

CONFIDENTIAL PERSONAL INFORMATION

(".—(1) In section (Authorisations requiring approval) "confidential personal information" means—

(a) personal information which a person has acquired or created in the course of any trade, business, profession or other occupation or for the purposes of any paid or unpaid office, and which he holds in confidence, and

(b) communications as a result of which personal information—

  1. (i) is acquired or created as mentioned in paragraph (a), and
  2. (ii) is held in confidence.

(2) For the purposes of this section "personal information" means information concerning an individual (whether living or dead) who can be identified from it and relating—

  1. (a) to his physical or mental health, or
  2. (b) to spiritual counselling or assistance given or to be given to him.

(3) A person holds information in confidence for the purposes of this section if he holds it subject—

  1. (a) to an express or implied undertaking to hold it in confidence, or
  2. (b) to a restriction on disclosure or an obligation of secrecy contained in any enactment (including an enactment contained in an Act passed after this Act).").

39 Insert the following new clause—

CONFIDENTIAL. JOURNALISTIC MATERIAL

("—(1) In section (Authorisations requiring approval) "confidential journalistic material" means—

(a) material acquired or created for the purposes of journalism which—

  1. (i) is in the possession of persons who acquired or created it for those purposes,
  2. (ii) is held subject to an undertaking, restriction or obligation of the kind mentioned in section (Confidential personal information)(3), and
  3. (iii) has been continuously held (by one or more persons) subject to such an undertaking, 1115 restriction or obligation since it was first acquired or created for the purposes of journalism, and

(b) communications as a result of which information is acquired for the purposes of journalism and held as mentioned in paragraph (a)(ii).

(2) For the purposes of subsection (1), a person who receives material, or acquires information, from someone who intends that the recipient shall use it for the purposes of journalism is to be taken to have acquired it for those purposes.").

40 Clause 95, page 38, line 20, leave out ("sections 92 and 94") and insert ("this Part by persons other than Commissioners appointed under section 96").

41 Page 38, leave out lines 30 and 31 and insert—

("(5) A statutory instrument which contains an order under subsection (4) shall not be made unless a draft has been laid before, and approved by a resolution of, each House of Parliament.").

42 Page 38, leave out from beginning of line 41 to end of line 5 on page 39 and insert—

("(8) Persons, other than Commissioners appointed under section 96, shall have regard to any code of practice issued under this section in the performance of their functions under this Part.").

43 Page 39, line 6, leave out from ("of') to ("to ") in line 7 and insert ("any person").

44 Page 39, line 10, leave out ("In all criminal and civil proceedings").

45 Page 39, line 11, after ("evidence") insert ("in criminal and civil proceedings").

46 After Clause 95, insert the following new clause—

("Complaints etc.

COMPLAINTS

—(1) Where a complaint is made, in accordance with arrangements made by the Chief Commissioner, to a Commissioner appointed under section 96(1)(b), the Commissioner shall investigate the complaint if and so far as it alleges that anything has been done in relation to any property of the complainant in pursuance of an authorisation under section 92(2)(a) or (b).

(2) For the purposes of subsection (1), a place where the complainant works or resides shall be treated as property of the complainant.

(3) A Commissioner's duty under this section does not extend to a complaint if he considers that it is frivolous or vexatious.

(4) Schedule 7 makes further provision in relation to the investigation of complaints by a Commissioner.").

47 Insert the following new clause—

QUASHING OF AUTHORISATIONS ETC

(".—(1) Where, at any time, a Commissioner appointed under section 96(1)(b) is satisfied that, at the time an authorisation was given or renewed, there were no reasonable grounds for believing the matters specified in section 92(3), he may quash the authorisation or, as the case may be, renewal.

(2) Where, in the case of an authorisation or renewal to which section (Authorisations requiring approval) does not apply, a Commissioner appointed under section 96(1)(b) is at any time satisfied that, at the time the authorisation was given or, as the case may be, renewed,—

  1. (a) there were reasonable grounds for believing any of the matters specified in subsection (2) of section (Authorisations requiring approval), and
  2. (b) there were no reasonable grounds for believing the 1116 case to be one of urgency for the purposes of subsection (3) of that section,
he may quash the authorisation or, as the case may be, renewal.

(3) Where a Commissioner quashes an authorisation or renewal under subsection (1) or (2), he may order the destruction of any records relating to information obtained by virtue of the authorisation (or, in the case of a renewal, relating wholly or partly to information so obtained after the renewal) other than records required for pending criminal or civil proceedings.

(4) If a Commissioner appointed under section 96(1)(b) is satisfied that, at any time after an authorisation was given or, in the case of an authorisation renewed under section 94, after it was renewed, there were no reasonable grounds for believing the matters specified in section 92(3), he may cancel the authorisation.

(5) Where—

  1. (a) an authorisation has ceased to have effect (otherwise than by virtue of subsection (1) or (2)), and
  2. (b) a Commissioner appointed under section 96(1)(b) is satisfied that, at any time during the period of the authorisation, there were no reasonable grounds for believing the matters specified in section 92(3),
he may order the destruction of any records relating, wholly or partly, to information which was obtained by virtue of the authorisation after that time (other than records required for pending criminal or civil proceedings).

(6) Where a Commissioner exercises his powers under subsection (1), (2) or (4), he shall, if he is satisfied that there are reasonable grounds for doing so, order that the authorisation shall be effective, for such period as he shall specify, so far as it authorises the taking of action to retrieve anything left on property in accordance with the authorisation.

(7) Where a Commissioner exercises a power conferred by this section, he shall, as soon as is reasonably practicable, make a report of his findings—

  1. (a) to the authorising officer who gave the authorisation or in whose absence it was given, and
  2. (b) to the Chief Commissioner;
and paragraph 5 of Schedule 7 shall apply for the purposes of this subsection as it applies for the purposes of that Schedule.

(8) Where—

  1. (a) a decision is made under subsection (1) or (2) and an order for the destruction of records is made under subsection (3), or
  2. (b) a decision to order the destruction of records is made under subsection (5),
the order shall not become operative until the period for appealing against the decision has expired and, where an appeal is made, a decision dismissing it has been made by the Chief Commissioner.

(9) A Commissioner may exercise any of the powers conferred by this section notwithstanding any approval given under section (Authorisations requiring approval).").

48 Insert the following new clause—

("Appeals

APPEALS BY AUTHORISING OFFICERS

.—(1) An authorising officer who gives an authorisation, or in whose absence it is given, may, within the prescribed period, appeal to the Chief Commissioner against—

  1. (a) any refusal to approve the authorisation or any renewal of it under section (Authorisations requiring approval);
  2. (b) any decision to quash the authorisation, or any 1117 renewal of it, under subsection (1) of section (Quashing of authorisations etc.);
  3. (c) any decision to quash the authorisation, or any renewal of it, under subsection (2) of that section;
  4. (d) any decision to cancel the authorisation under subsection (4) of that section;
  5. (e) any decision to order the destruction of records under subsection (5) of that section;
  6. (f) any refusal to make an order under subsection (6) of that section;
  7. (g) any determination in favour of a complainant under Schedule 7.

(2) In subsection (1), "the prescribed period" means the period of seven days beginning with the day on which the refusal, decision or, as the case may be, determination appealed against is reported to the authorising officer.

(3) In determining an appeal within subsection (1)(a), the Chief Commissioner shall, if he is satisfied that there are reasonable grounds for believing the matters specified in section 92(3), allow the appeal and direct the Commissioner to approve the authorisation or renewal under that section.

(4) In determining—

  1. (a) an appeal within subsection (1)(b), or
  2. (b) an appeal within subsection (1)(g), in a case where paragraph 1 A(2) of Schedule 7 applies,
the Chief Commissioner shall allow the appeal unless he is satisfied that, at the time the authorisation was given or, as the case may be, renewed there were no reasonable grounds for believing the matters specified in section 92(3).

(5) In determining—

  1. (a) an appeal within subsection (1)(c), or
  2. (b) an appeal within subsection (1)(g), in a case where paragraph 1A(3) of Schedule 7 applies,
the Chief Commissioner shall allow the appeal unless he is satisfied as mentioned in section (Quashing of authorisations etc.)(2).

(6) In determining—

  1. (a) an appeal within subsection (1)(d) or (e), or
  2. (b) an appeal within subsection (1)(g), in a case where paragraph 1A(4) of Schedule 7 applies,
the Chief Commissioner shall allow the appeal unless he is satisfied that at the time to which the decision relates there were no reasonable grounds for believing the matters specified in section 92(3).

(7) In determining an appeal within subsection (1)(f) the Chief Commissioner shall allow the appeal and order that the authorisation shall be effective to the extent mentioned in section (Quashing of authorisations etc)(6), for such period as he shall specify, if he is satisfied that there are reasonable grounds for making such an order.

(8) Where an appeal is allowed under this section, the Chief Commissioner shall—

  1. (a) in the case of an appeal within subsection (1)(b) or (c), also quash any order made by the Commissioner to destroy records relating to information obtained by virtue of the authorisation concerned, and
  2. (b) in the case of an appeal within subsection (1)(g), also quash any direction to pay compensation to the complainant.").

49 Insert the following new clause—

APPEALS BY AUTHORISING OFFICERS: SUPPLEMENTARY

(".—(1) Where the Chief Commissioner determines an appeal under section (Appeals by authorising officers)—

(a) he shall give notice of his determination—

  1. (i) to the authorising officer concerned,
    2. 1118
  2. (ii) to the Commissioner against whose refusal, decision or determination the appeal was made, and
  3. (iii) in the case of an appeal within subsection (1)(g) of that section, to the complainant, and

(b) if he dismisses the appeal, he shall make a report of his findings—

  1. (i) to the authorising officer concerned,
  2. (ii) to the Commissioner against whose refusal, decision or determination the appeal was made, and
  3. (iii) under section 98(1), to the Prime Minister.

(2) Subject to subsection (1)(b), the Chief Commissioner shall not give any reasons for a determination under section (Appeals by authorising officers).

(3) Nothing in section (Appeals by authorising officers) shall prevent a designated deputy from exercising the powers conferred by subsection (1) of that section on an authorising officer within paragraph (a), (c), (d), (f) or (g) of section 92(5A).").

50 Insert the following new clause—

APPEALS BY COMPLAINANTS

(".—(1) Where a complainant is notified under paragraph 2A(2) of Schedule 7 that no determination in his favour has been made on a complaint, he may, within the period of seven days beginning with the day on which he receives the notice, appeal to the Chief Commissioner against the decision.

(2) Where a complainant appeals under this section, the Chief Commissioner shall have—

  1. (a) all the powers and duties conferred by Schedule 7 on a Commissioner appointed under section 91(1) (b) who is required to investigate a complaint, and
  2. (b) where the Chief Commissioner makes a determination in favour of the complainant by virtue of paragraph (a), all the powers and duties conferred by section (Quashing of authorisations etc.)

(3) Where, by virtue of subsection (2), the Chief Commissioner makes an order to destroy records under section (Quashing of authorisations etc.) or directs the payment of compensation under Schedule 7, subsection (8) of that section and paragraph 3(2) of that Schedule shall not apply.

(4) The Chief Commissioner shall make a report of his findings on an appeal under this section—

  1. (a) to the Commissioner who made the decision appealed against, and
  2. (b) where he allows the appeal, to the Prime Minister under section 98(1).").

51 Clause 96, page 39, line 16, at end insert ("for the purposes of this Part").

52 Page 39, leave out line 20.

53 Page 39, line 24, leave out ("Each Commissioner shall hold") and insert ("Subject to subsections (3A) to (3D), each Commissioner shall hold and vacate").

54 Page 39, line 25, at end insert—

("(3A) Each Commissioner shall be appointed for a term of three years.

(3B) A person who ceases to be a Commissioner (otherwise than under subsection (3D)) may be reappointed under this section.

(3C) Subject to subsection (3D), a Commissioner shall not be removed from office before the end of the term for which he is appointed unless a resolution approving his removal has been passed by each House of Parliament.

(3D) A Commissioner may be removed from office by the Prime Minister if after his appointment—

  1. (a) a bankruptcy order is made against him or his estate 1119 is sequestrated or he makes a composition or arrangement with, or grants a trust deed for, his creditors;
  2. (b) a disqualification order under the Company Directors Disqualification Act 1986 or Part II of the Companies (Northern Ireland) Order 1989, or an order under section 429(2)(6) of the Insolvency Act 1986 (failure to pay under county court administration order), is made against him; or
  3. (c) he is convicted in the United Kingdom, the Channel Islands or the Isle of Man of an offence and has passed on him a sentence of imprisonment (whether suspended or not).").

55 Page 39, line 30, leave out ("Commissioners think") and insert ("Secretary of State considers").

56 Page 39, line 30, at end insert—

("() The decisions of the Chief Commissioner or, subject to sections (Appeals by authorising officers) and (Appeals by complainants), any other Commissioner (including decisions as to his jurisdiction) shall not be subject to appeal or liable to be questioned in any court.").

57 Page 39, leave out lines 31 to 35.

58 Page 39, transfer Clause 96 to end of line 22 on page 34.

59 Leave out Clause 97

60 Clause 98, page 40, line 35, at beginning insert—

("General

() The Chief Commissioner shall keep under review the performance of functions under this Part.").

61 Page 40, line 36, leave out ("his functions") and insert ("functions under this Part")

62 Page 40, line 37, leave Out ("his discharge of').

63 Page 41, line 1, leave out ("continued").

64 Page 41, leave out lines 7 to 9 and insert—

("(4) Any person having functions under this Part, and any person taking action in relation to which an authorisation was given, shall comply with any request of a Commissioner for documents or information required by him for the purpose of enabling him to discharge his functions.").

65 Clause 99, page 41, line 13, at end insert—

(""authorization" means an authorisation under section 92;").

66 Page 41, line 14, leave out ("92(6)") and insert ("92(5A)").

67 Page 41, line 31, at end insert—

("() Where, under this Part, notice of any matter is required to be given in writing, the notice may be transmitted by electronic means.")

68 Page 41, line 31, at end insert—

("() For the purposes of this Part, an authorisation (or renewal) given—

  1. (a) by the designated deputy of an authorising officer, or
  2. (b) by a person on whom an authorising officer's powers are conferred by section 94,
shall be treated as an authorisation (or renewal) given in the absence of the authorising officer concerned; and references to the authorising officer in whose absence an authorisation (or renewal) was given shall be construed accordingly.").

Baroness Blatch

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 8 to 68 inclusive. I have spoken to Amendments Nos. 8 to 68 with Amendment No. 7.

Moved, That the House do agree with the Commons in their Amendments Nos. 8 to 68.—(Baroness Blatch.)

On Question, Motion agreed to.