§ 8.55 p.m.
§ Lord Williams of Mostyn rose to move, That the draft orders laid before the House on 19th November be approved [1st Report from the Joint Committee].
§ The noble Lord said: My Lords, with the leave of the House I beg to move the Motions standing in my name on the Order Paper en bloc.
Part III of the Police Act gives the police, the National Crime Squad, the National Criminal Intelligence Service and Customs & Excise a firm statutory base for their intrusive surveillance operations. These involve entry on or interference with property or wireless telegraphy and that, Parliament has decided, is an essential weapon in the fight against serious crime. The decisions to authorise these sensitive but extremely important operations will continue to be made by chief officers of police, the directors general of the National Crime Squad or NCIS and designated senior Customs officers. But the public interest will be safeguarded by independent oversight in the form of commissioners who are to be serving or former High Court judges.
We had a vigorous debate in this Chamber about these provisions and, significantly because of that, the draft legislation was changed and measures introduced providing quasi-judicial oversight of this process. An Office of Surveillance Commissioners has been established and a computer database developed to support its work. The Prime Minister appointed Sir Andrew Leggatt as Chief Surveillance Commissioner in July and recently announced the appointment of six Surveillance Commissioners—Sir Christopher Staughton, Sir Michael Hutchison and Sir Charles McCullough for England and Wales, Lord Bonomy and Lord Davidson in Scotland and Sir John MacDermott in Northern Ireland. They will be responsible for scrutinising all notifications of authorisations and for giving their prior approval, except 898 in cases of urgency, to authorisations involving the intrusion of dwellings, hotel bedrooms and offices as well as intrusions likely to involve confidential information of various kinds. They will have the power to quash or cancel authorisations which they feel have been improperly given and to order the destruction of records (other than those required for pending proceedings) and the payment of compensation. They will also be responsible for investigating complaints.
The two draft orders therefore represent the final steps in the implementation process. One order relates to the code of practice which will underpin these provisions and the other to the information which must be provided to commissioners on notification of an authorisation, its renewal or cancellation. We had extensive public consultation and considered the responses carefully.
The second draft order gives details of the information which must be provided, as I indicated, with a notification of authorisation, renewal or cancellation of an authorisation. A notification of an authorisation given by an authorising officer—that is, a chief constable or equivalent—must record whether it is a case for which prior approval is required: if it is a case which would otherwise require approval but in which intrusive surveillance has started because of urgency, the grounds on which the case is believed to be urgent; how the authorisation criteria have been met—for example, how the case fits within the definition of serious crime and why the purpose which the action seeks to achieve cannot reasonably be achieved by other means; the identity or identities, where known, of those to be targeted; the property against which surveillance is to take place; the nature of the surveillance authorised and the reason why; whether the intrusive surveillance is considered likely to lead to collateral intrusion on or interference with persons other than the person being targeted by the authorisation; and whether or not it will be necessary to retrieve any equipment used in the surveillance.
The notification of renewal must, in addition, record whether this is the first renewal or every occasion on which the authorisation has been renewed previously; every respect in which the information in the previous authorisation has changed; why it is necessary to continue; the content and value to the investigation of the product so far obtained; the results of periodic reviews carried out by the authorising officer; and an estimate of the length of time the authorisation will continue to be necessary. Any cancellation of an authorisation must record the time and date when the instruction was given to cease surveillance; the reason why; the outcome of the investigation and the nature of any criminal proceedings contemplated; and the arrangements for the storage of material obtained as a result of the surveillance, for its review and destruction when it is no longer of use and for the immediate destruction of unrelated material.
These provisions are welcomed by chief officers. They do not see them as hampering their work or as an additional unreasonable administrative burden. They are very positive about the provisions which they believe will help satisfy the public about the accountability of their decisions. They understand and fully appreciate 899 that any decision they take has to be fully justified to a commissioner or, should the surveillance result in a criminal prosecution, to a court. I commend the orders to your Lordships.
Moved, That the draft orders laid before the House on 19th November be approved. [1st Report from the Joint Committee].—(Lord Williams of Mostyn.)
Viscount AstorMy Lords, we welcome the two Motions. The orders take forward our policy which emanated from the Police Act 1997, part of which the noble Lord, Lord Williams, supported when in opposition.
I have questions on three brief points. First, there are to be six surveillance commissioners. I wonder whether that is enough. Have the Government considered how many cases they will have to look after? Will the commissioners be spread geographically? Will the Government review the number?
Secondly, I note that the annual report will be made to the Prime Minister by the Chief Commissioner. That is provided in Section 3(5) on page 15 of the code. I wonder why it is to be made to the Prime Minister and not to the Home Secretary. If the report is to be on the operation of the whole system, and not just on the detail, I wonder whether that report will be laid before Parliament.
Thirdly, I presume that the whole policy will be kept under review, but I wonder whether there is a plan for the Home Office to conduct an annual review of this new policy and therefore whether a report will be made to Parliament.
§ Lord McNallyMy Lords, when the Home Secretary had the courtesy to send me the code of practice, he wrote:
I have sought to achieve a balance between the operational needs of law enforcement and, at the same time, ensuring safeguards to protect members of the public from unnecessary invasions of their privacy".We accept that approach to the orders.Nevertheless, from these Benches, we make no apology for emphasising the need to take care over civil liberties. That does not mean that we doubt the civil liberty credentials of Ministers any more than we accept the criticism that we may be soft on crime. The point is that when giving power to police authorities, such as this, it is very necessary for Parliament to be aware of threats to civil liberties. That is why, from these Benches, we were extremely vigorous in expressing our concerns during the passage of the Bill.
We have considered the outcome of the consultation. In the main, the Government have listened and have made substantial changes, which we welcome. We believe that the consultation process and the pressure for consultation was worthwhile. It produced some good results. My brief lists some 16 improvements to the code but, as I note the Sudanese team straining at the leash, I shall not detail them now. However, I think that the Minister will be proud to note that we have listed at least 16 improvements resulting from the consultation.
900 There are still problems about a clear definition of "urgency". There is a continuing problem about targeting property where the consent of the owner has been obtained, but where the tenant is the target. In another place my right honourable friend, Mr. Alan Beith, suggested that although the approval procedure is not formally required if a property owner has given permission, the police could still use the procedure anyway. That would not only improve protection for the tenant, but would also benefit the police operationally. We put that forward, as did my right honourable friend in another place, as a constructive suggestion about the codes.
I am sure that the Minister will also be aware that Justice has expressed disappointment at the code's lack of transparency. Justice has urged that the internal review process should be rigorous—that is something about which the Minister has just assured us—and that the range of information to be included on authorisation and notification forms should be broadened.
Within those terms, we see that Ministers have listened and tried to improve the provisions. We say both to them and to the police authorities which will have to use the powers that we understand the operational need for them. We hope that they will understand our continuing surveillance of how they use them in terms of civil liberties.
§ Lord Williams of MostynMy Lords, I am grateful to both noble Lords. Perhaps I may deal first with the points raised by the noble Lord, Lord McNally. I entirely accept his point that we must strike a careful balance here. It should be not just a cosmetic balance; there should be a continuing, rigorous investigation of whether we have got the balance right. We took a little time over the consultation process and I believe that that was time well spent. We did the same on the Human Rights Act, the Data Protection Act and the Crime and Disorder Act. The outcome benefited from the discipline of listening to other people's views. I am grateful for the noble Lord's generous observations on that point.
The noble Lord will remember the debates in which we both participated in which it was suggested that perhaps circuit judges might be the appropriate reviewing bodies. I never favoured that proposal. The seriousness that we attach to this matter can be seen from the fact that we have appointed Sir Andrew Leggatt, a recently retired Lord Justice of Appeal, as Chief Surveillance Commissioner, and as commissioners Sir Christopher Staughton, Sir Michael Hutchison, and Sir Charles McCullough who is, of course, a senior former puisne High Court judge. We have gone to the same level in appointing also Lord Bonomy and Lord Davidson in Scotland, and Sir John MacDermott in Northern Ireland. I believe that is a fair indicator of the fact that we regard this work as extremely important and serious.
Perhaps I may deal with the points raised by the noble Viscount. We believe that sufficient commissioners have been appointed. When questions were raised during the passage of the Bill, it was difficult to identify precisely the number required. That is the weakness of the existing "non-system". At that time, nobody was 901 certain, but our best estimate following a review a little later was that there would be about 2,550 cases per year. We think that there are sufficient commissioners to deal with that number. However, we can appoint more commissioners if that proves necessary. The report is made to the Prime Minister because these are Prime Ministerial appointments.
If it seems that there are insufficient commissioners, that is a point that one would expect to be raised in the annual report. We shall keep the matter under review. After all, the chief commissioner will report annually on Part III provisions. If he believes that any further tightening or balancing ought to be carried out, we would expect such a senior person as Sir Andrew Leggatt to bring that immediately to the attention of the Prime Minister in the annual report.
As regards more general review, the Home Office will obviously be keenly interested in how things work in practice. We shall have an overview rather than a formal review. I believe that that is the best way to deal with the matter. As I said, I am most grateful for the welcome that has been given to the orders. In respect of any Home Office legislation that I bring forward, I give the following undertaking and repeat what I said the other day. After Second Reading, I give a general invitation to all colleagues in opposition from any part of the House to come, with advisers if they choose, to have ministerial and official briefings before the Committee stage. I believe that to be a useful way of going forward. I am happy to repeat what I said.
On Question, Motion agreed to.