HL Deb 28 June 2000 vol 614 cc900-13

3.13 p.m.

The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Bassam of Brighton.)

Lord Cope of Berkeley

My Lords, before we start the Committee proceedings, I wish to record that the Government have written to me and to other Members of your Lordships' House setting out a vast series of most important changes which rewrite important parts of the Bill. I am glad that the Government have recognised the need for this major rewrite. I am grateful to the noble Lord, Lord Bassam, and to the Chief Whip for their letters, which have been fairly widely distributed, although I do not think that they were placed in the Library.

Some of these important amendments concerning Part III appeared yesterday. We shall discuss them later today, although admittedly at short notice. However, other changes were promised at earlier stages of the Committee but we have not yet seen the actual amendments. It is clear that, for example, the definition of "communications data" and the matters which flow from it will be of the first importance, will be exceptionally complex and will have consequences in a number of clauses. They may well amount to a rewrite of that part of the Bill.

In those circumstances, we may seek the recommittal of that part of the Bill in accordance with the Companion to the Standing Orders, which suggests that procedure for amendments tabled at a late stage which require detailed examination. The Companion states: Decision on such amendments may then be reached on recommitment, reserving to the Report stage its proper function as an opportunity to review and perfect the bill as amended in Committee". Obviously such a request would be considered by the usual channels. However, I thought that it might be useful to mention that possibility now.

Lord McNally

My Lords, further to that comment, perhaps the Chief Whip rather than the Minister should respond to those concerns. We are almost now dealing with a House of Lords Bill, so dramatically is the Bill being rewritten as we proceed. I repeat: if ever there was a case for pre-legislative scrutiny, this Bill is it. I hope that in future, when Bills of great technicality are brought before the House, outside expertise will be brought in at an early stage, rather than having to have that expertise brought to bear on the Home Office before concessions are made, as in this case.

I do not wish to appear churlish. Having pressed changes on the Home Office, we do not object to the fact that changes to the Bill are now being made. However, it is now extremely difficult, midway through the Committee stage, to make a judgment on the balance of the Bill. It would be helpful to know how the Report stage will be handled.

I address my next question to either the Minister or the Chief Whip: will we see the code of conduct before Report stage? The rewriting that has been promised as the Committee stage has proceeded and the code of conduct will give us a much more complete picture of the Bill.

To try to legislate both for civil liberties and for one of the most important new 21st century industries in the rather heated atmosphere of July, with all the pressures that that entails, and with a Bill which involves considerable secondary legislation and delegated powers, is not the way to do business. It is not just a case of the Opposition opposing this process; there are some sensible lessons to be learned with regard to how we have reached this position and how it should be avoided in the future.

Lord Bassam of Brighton

My Lords, I shall try to deal with the points in turn. I am a great fan of pre-legislative scrutiny. I take to heart the comments that have been made in that regard. It is an important and valid point. I thank both noble Lords who have spoken. However, I ask the rhetorical question: how would they have felt if we had not made any changes? We have moved a long way on the Bill. We said at the outset that we would do precisely that and that this was a listening and a consultative process. We said that we would take on board reasonable criticisms, as far as we could do so, and engage actively with industry interests.

What I can say to both noble Lords is that we are still committed to the timetable of producing by the Report stage the draft codes of practice. We want to be as helpful as we can be in enabling industry interests to have the maximum opportunity to look at those because clearly they have a bearing on future debates. I hope that that clarifies that point.

As to recommittal, that is a question to be considered in the usual way by the usual channels. I am grateful to noble Lords for their contributions. I think that that presages a helpful dialogue over the amendments we have tabled. We will try to give as much advance information on the precise nature of other amendments that are to be brought forward at the Report stage. But, as I have said, this is all about listening. We are trying to listen. We have taken on board many comments and criticisms. We want to improve the quality of this legislation, as we do with all other pieces of legislation.

On Question, Motion agreed to.

House in Committee accordingly.


Clause 25 [Conduct to which Part II applies]:

Lord Bach moved Amendment No. 99A: Page 27, line 11, leave out ("For the purposes of this Part surveillance is directed") and insert ("Subject to subsection (5A), surveillance is directed for the purposes of this Part").

The noble Lord said: In moving Amendment No. 99A I should like to speak to government Amendments Nos. 102A, 110 and 137. There are other amendments in this group. If it is acceptable to the Committee I propose to listen to what is said when those amendments are moved, if they are moved, and then reply to them when I speak again.

We have listened closely to the representations that have been made in relation to Parts I and III of the Bill. The Committee will agree that we have tried to meet those concerns where possible and given clear reasons where we think amendments were not acceptable. I am therefore turning, with some relief, to Part II which is, we think, genuinely welcomed by everyone. These are important provisions which will safeguard the use of these valuable investigative techniques by law enforcement authorities, by the intelligence services and by many public authorities carrying out statutory enforcement functions.

As part of the development of policy, we have been able to identify all those public authorities currently using covert investigative techniques. The provisions of the Bill will introduce control and national standards for activity which is currently unregulated. They will also ensure that authorisations for action are given only on grounds compatible with the Human Rights Act. That activity is being authorised at the same level across Whitehall and other public sectors and there is effective and independent oversight of the use of these techniques.

After those few introductory words regarding Part II, perhaps I may turn to the government amendments. These amendments generally address a wide range of issues concerning the definitions of surveillance and covert sources. I have already mentioned that a beneficial side effect of this legislation has been to identify all those public authorities carrying out covert surveillance activities. We have tabled an amendment proposing that these authorities be identified in a schedule to the Bill. However, we are still becoming aware of activities on which the Bill will impact. One such activity is the use of covert surveillance by the BBC in order to detect licence evasion.

As currently drafted, it could be argued that this activity is intrusive surveillance. It is covert surveillance involving primarily residential premises, and equipment is deployed outside the premises which produces a picture of the same quality and detail as might be expected to be obtained from a device inside the premises. However, it cannot be said that such activity infringes on a person's privacy in the same way as a bugging device or hidden camera impinges on their privacy. It would not, for example, provide details of that individual's private or family life, except perhaps for his taste in television programmes. All that it would provide would be details of the television programme being watched by a person, the same as is being broadcast into millions of other homes.

We have therefore decided to exclude this specific activity from the definitions of intrusive and directed surveillance. However, this does not mean to say that we do not believe this activity does not constitute some invasion of privacy or that it should not be put on a statutory basis.

The provisions in Clause 44 of the Bill allow the Secretary of State, by order, to add to the types of covert surveillance identified in the Bill. The issue of TV licence evasion detecting equipment is a candidate for an order under this clause. This activity is a rather distinctive type of surveillance that does not fit easily with the existing provisions in Part II of the Bill.

Bringing forward an order specifying it as a new type of surveillance would be a way of making it subject to statutory controls. I beg to move.

The Chairman of Committees (Lord Boston of Faversham)

As Amendment No. 103 is grouped with this amendment, I must point out to the Committee that if that amendment is agreed to I cannot call Amendments Nos. 104 to 106.

Lord Cope of Berkeley

We have two amendments in this group. Perhaps I may say to the Minister that the government amendment brought forward in response to consultation and pressure could almost he covered by the phrase "minor and technical amendments", a phrase used by Mr Charles Clarke about the Bill when it left the Commons. When asked what amendments he expected would be made in the House of Lords he said that some minor and technical amendments might be made. As I say, I think that this amendment just about comes under that description. However, many of the amendments which we shall discuss later do riot. As I said a few moments ago, I am glad about the recognition of a need for a rewrite and for that matter the recognition by noble Lords of the, importance of the Bill.

Our Amendment No. 102 is grouped with Amendment No. 99A. The amendment draws attention to Clause 25(2)(b), which states: For the purposes of this Part surveillance is directed … in such a manner as is likely to result in the obtaining of private information about a person (whether or not one specifically identified for the purposes of the investigation or operation)". We recognise that in picking up private information about one individual who is the suspect—let us call him the probable criminal—other information about those adjacent to him, in his family or whatever, is likely to be collected at the same time, even if it is not directly relevant to the operation being conducted. But that information is not really the information which those carrying out the surveillance should be going for. I think that we should consider that. Furthermore, the clause appears to permit fishing expeditions against people who are not suspected of any crime, terrorism and so on. Therefore, I thought it worth probing what exactly is intended by the words in the amendment.

The Minister mentioned the BBC in connection with licence evasion. We have read in the Sunday Telegraph about how the BBC was involved in covert and intrusive surveillance of a residential home, which led to a programme which has been severely criticised not only by the Sunday Telegraph but also by the police. I do not want to become involved in the rights and wrongs of the actual programme concerned, but it is clear that this was covert, intrusive surveillance by the BBC. There were concealed cameras in residential premises for the exact purpose of filming people within that home. That practice, of course, is by no means unique.

If the Bill is passed in its present form, it would be helpful if we could be told about the future legal position in connection with covert intrusive surveillance for the purposes of collecting private information by the BBC or any other news media. However, the main purpose of my remarks is to illustrate the reason why we have tabled Amendment No. 102.

I have also tabled Amendment No. 112A, which has been included in this grouping. At Clause 25(7) the Bill sets out provisions covering a "covert human intelligence source"—more usually known as a "grass". The clause defines such a person and provides for how such a relationship is to be governed. All that is fine. However, my amendment draws attention to the kind of circumstance where someone discloses information that he has obtained in a similar fashion, but has done so, to avoid the commission of a criminal offence by another person under any other enactment". We are not discussing a person established as a grass by the police, but rather a person who decides to grass on someone else in order to avoid the commission of an offence. The amendment seeks to explore the exact position of such a person. Clearly, these people can be of great value to the police and no one would wish to discourage them or place legal impediments in their way. I hope that the Bill does not do that, but I thought it best to inquire about the effects of the Bill while we are debating it in Committee.

3.30 p.m.

Lord McNally

Following on a point made by the noble Lord, Lord Cope, in the past I have worked, in a purely voluntary capacity, with the Alliance Against Counterfeiting and Copyright Theft, a body of commercial organisations that uses various surveillance techniques to track down those involved in offences of counterfeiting and breach of copyright on CDs and so forth. That body is concerned that it might be caught within the ambit of the Bill. It may be that the Minister has a ready response on this point. If not, the issue may need to be brought back on Report in the form of a probing amendment.

Rather like the example given by the Minister of the television detector van, concern has been growing that other activities that were previously thought of as proper and legitimate might now be "hoovered up" by the powers contained in the Bill.

Lord Phillips of Sudbury

On behalf of my colleagues on these Benches, I shall speak to an inordinately long list of amendments contained in this grouping: Amendments Nos. 100, 101, 103, 104, 107, 108, 111, 112, 116, 119 and 138. That constitutes a Herculean, if not an impossible, task. Difficult though the job of organising amendments can be, I wonder why so many amendments have been strung together into one grouping. They cover a wide variety of highly important issues.

The broad intention behind the first two-thirds of these amendments is to ensure a higher level of distinction between, and a greater level of protection against, certain kinds of surveillance. Under the Bill, "directed" surveillance and the use of what are termed "covert intelligence sources" require the lesser control of self-authorisation from a designated person within the agency undertaking the action. "Intrusive" surveillance, which is defined in Clause 25, requires approval from a High Court judge acting as a commissioner.

I do not expect noble Lords have been able to study all the amendments in detail. It would weary the Committee were I to plod through them one by one, especially since we face a long day ahead. However, the general endeavour is, first, to probe what is an extraordinarily complex clause. I wonder whether the good noble Lords, Lord Bassam and Lord Bach, have lulled themselves to sleep trying to comprehend the many subsections contained in Clause 25. The clause has a certain "Alice in Wonderland" quality. "Through the Looking Glass" would not be a bad way of putting it. With these amendments we are trying to ensure that more surveillance has to be dealt with under the category of "intrusive" surveillance, so giving a greater degree of protection for the citizen, something which we believe it is essential to provide in this measure.

Perhaps I may refer briefly to the impact of the European Convention on Human Rights. I am sure that the Committee will ultimately be bored stiff—if it is not already—by constant reference to that convention. However, the convention lies at the heart of the Bill. Furthermore, it will come into effect through our own Human Rights Act on 1st October this year. We believe that the Bill as it stands and Clause 25 in particular fail to acknowledge that the European Court in Strasbourg has made it clear that Article 8 privacy rights can be engaged outside residential premises and private vehicles. Noble Lords will recollect that the definition in the Bill of "intrusive" surveillance is that which is undertaken in or outside residential premises or private vehicles. We believe that that is far too narrow a definition in terms of necessary protection of the public and in terms of the European convention.

For example, in the case of Niemietz v. Republic of Germany, the court held that a person is also entitled to a degree of privacy in professional and business relationships. I am sure that it is already apparent that if Clause 25 is left unamended, in particular subsection (3), it will be possible to carry out surveillance in a doctor's surgery, an MP's office, a restaurant, a public place, the workplace or a vehicle. None of those areas will be protected by the need for independent authorisation under the Bill as it stands. We feel that that is wrong. Furthermore, it is likely that the Bill will fall foul of the European convention and, in particular, will not meet the precedent set by the Niemietz case. Perhaps I may add that long ago, in 1967, the United States Supreme Court held that privacy rights protect people rather than places. We do not seem to have taken that on board.

I should also tell the Committee that the Data Protection Commissioner has recommended that the definition of "intrusive" surveillance should be widened to include any premises or location where the individual has a legitimate expectation of privacy. The same opinion has been expressed by the Irish Law Reform Committee and many others.

I turn very briefly to some of the individual amendments. Amendment No. 103 inserts the phrase in Clause 25(3) that any surveillance which, interferes with any person's privacy in circumstances where that person has a reasonable expectation of privacy", should be seen as an important and guiding principle.

In Amendment No. 107 we seek to add to Clause 25(3) a new paragraph which states: Surveillance may be intrusive for the purposes of this Part irrespective of whether permission is obtained from a person able to give permission in respect of relevant premises to the conduct taking place on or in relation to those premises". That is excepted from "intrusive" surveillance by the Bill as it stands.

Importantly, too, in Amendment No. 103 we seek to delete the major part of subsection (3), to which I have referred. We believe that that will avoid the rather ludicrous distinction between one type of vehicle and another, or one type of premises and another.

Given this immense grouping, perhaps I may deal briefly with the issue that I touched on at the beginning of my remarks; namely, covert human intelligence sources. That is dealt with—

Lord Williams of Elvel

Will the noble Lord tell me whether the Liberal Democrats were party to the grouping about which he has complained? It is the normal procedure for groupings lists to be agreed. Also, I am not quite sure which noble Lord is speaking from the Liberal Democrat Front Bench.

Lord McNally

That is a good point, but the noble Lord has held high office in this place and he knows how much negotiation can go on—particularly when the Government have given us one last day in Committee and have virtually rewritten the Bill on the hoof. My noble friend makes a small point; the noble Lord makes a debating point. We accept the groupings list; we are working to it, and we can also complain about it.

Lord Williams of Elvel

I am sorry to intervene again, but the practice has been clearly set out by Government Whips. It is that groupings are agreed, and once they have been agreed they may be degrouped, but nevertheless Members cannot complain about the grouping. Secondly, as I say, I am not sure who is speaking for the Liberal Democrat Front Bench.

Lord Phillips of Sudbury

I shall continue. I may have over-egged my pudding. I was not party to these groupings. All I can say is that I believe that the task that I have, without prolonging what I have to say and confusing the Committee, is unreasonable. That may be a lesson that we on these Benches also need to learn.

Perhaps I may turn to the second part of this string of amendments; namely, Amendments Nos. 111, 112, 116, 119 and 138. They all deal with the question of informers and undercover agents. The broad purpose of the amendments is an attempt to draw a distinction between a police officer who is an informant and a criminal who is an informant. In brief, we believe that it is important that a distinction should be drawn and that the second class of informant should come under a higher test as regards the authorisation needed. That is why we state in Amendment No. 119 that, An Authorisation for the conduct and use of a covert human intelligence source whose conduct falls within section 25(7)(d) shall be governed by the same procedures as apply to the authorisation of conduct for the carrying out of intrusive surveillance". The human intelligence source falling within (d) is included in proposed Amendment No. 112; namely, an informer who, engages in a course of action which, without authority, could have led to his arrest and prosecution". I should add that the European Court in Strasbourg, in Kopp v Switzerland, severely criticised the practice of internal executive authorisation without supervision by an independent judge in relation to surveillance activities. It is, therefore, at least questionable whether self-authorisation within one of the agencies set up under the Bill would be considered a sufficient safeguard in relation to the activities of participating informers and undercover officers in serious crime cases.

Perhaps I may refer also to the case of Teixeira de Castro v. Portugal—I am grateful to Justice for supplying me with these authorities. That case places additional weight on the need for independent authorisation and supervision of undercover operations if the exercise is not to breach the European convention. It may, therefore, in accordance with this string of amendments, be necessary to draw that distinction whereby the use of participating informers and undercover officers in cases where there could be criminal activity requires prior authorisation by a judge. I shall rest my case on these amendments at that rather inadequate and brief explanation.

3.45 p.m.

Viscount Goschen

I welcome the assurance given by the Minister in his opening remarks that his officials will be drawing up a list of agencies to which the provisions of this part of the Bill apply. It may be for the convenience of the Committee in our understanding of the amendments if the Minister could give an overall broad view of what type of agencies those will be. For example, the BBC was mentioned by my noble friend Lord Cope in two different instances: detection of TV licence evasion, and undercover television documentary programmes—which may also be made by agencies other than publicly owned ones; namely, independent television companies. So in order to aid our understanding of this complex set of amendments, and indeed complex part of the Bill, will the Minister give an overview of what type of agencies are being authorised; and if they are not mentioned in this section of the Bill, does it mean that any conduct of this nature would be illegal?

Lord Monson

I have only just looked at this group of amendments and have not had a chance to study them in detail. However, it seems to me at first glance that Amendment No. 103 tabled by the Liberal Democrats is a particularly good one. If that could be agreed to, we should save a great deal of time.

Lord Bach

I can agree with the noble Lord, Lord Phillips of Sudbury, to the extent that Clause 25 is complicated. But it is not the first complicated clause that Members of the Committee have had to consider, nor, I dare say, will it be the last. The noble Lord knows as well as I that the point made by my noble friend Lord Williams of Elvel is absolutely right. If there were objections by his party to this grouping—which, I concede, is extensive— they should have been taken at another time. We are faced with the grouping now and, like the noble Lord, I shall do my best to answer the questions raised and deal with the amendments proposed.

Perhaps I may turn immediately to the question raised by the noble Viscount, Lord Goschen, as to who is covered by this part of the Bill. The answer is short. It is public authorities, in the broadest sense of the word, which are covered. Organisations which are not public authorities are not covered.

That takes me straight to the point made by the noble Lord, Lord McNally—who I know cannot be in his place at this moment—about the alliance against counterfeiting, whose exact name I cannot remember. That body is not a public authority and, therefore, could not be authorised to carry out surveillance under Part II. It is not a bad example. However, if it is decided that organisations are public authorities for this purpose, the schedule can be amended.

Lord Lucas

Will the noble Lord expand a little on the consequences of that decision for an institution such as the campaign against copyright theft, or people making investigative television programmes? Does the Human Rights Act mean that these people will now be liable for prosecution for entering and infringing people's privacy; or will they just trundle on much as they have done previously, without any adverse consequences?

Lord Bach

I want to be very careful in what I say, because we were taken by surprise by the mention by the noble Lord, Lord McNally, of the body in question. Our first view is that it is not a public authority. If we are wrong, what I am about to say does not apply, because it would be a public authority and thus covered by Part II.

This is the first time such surveillance, whether done privately or publicly, has been regulated. This is so to the extent that named public authorities will have the power to do this under close regulation. The status of private organisations that conduct themselves in such a way needs careful consideration. To adopt a phrase used not long ago, I am not prepared to speak off the hoof on that aspect. I should like to consider what the noble Lord said about it and perhaps write to him. I do not want to commit the Government to saying what the Bill provides about those organisations that are not public authorities and are therefore not covered by Part II. On the face of it, they would seem at the very least not to be acting in the context of the Bill.

I turn to the other amendments, hoping to be forgiven if, in the main, I deal with them in numerical order. The first four amendments, Nos. 100, 101, 103 and 104, spoken to by the noble Lord, Lord Phillips of Sudbury, address the fundamental concepts in Part II. We appreciate the concern to protect the privacy of individuals but we do not believe that the amendments adequately consider the practicalities. Their result might be to extend the stringent requirements attached to the authorisation of intrusive surveillance to a much wider range of activities presently covered under the provisions for directed surveillance. They would also lead to a great deal of confusion and uncertainty for the operational practitioners about what constitutes directed or intrusive surveillance.

There is no problem in identifying in advance operations involving residential premises or private vehicles. However, the same cannot be said about mobile surveillance, which makes up the majority of operations. It may well involve cases in which an individual considers that he has a reasonable expectation of privacy, even though that expectation would vary from one person to another. This would mean, for example, that the police would have to know before each covert surveillance operation began where their target was likely to go and whether he would find himself in circumstances in which he, or another, might have a reasonable expectation of privacy.

Generally speaking, the police and other operatives would not have that information and therefore could not make the judgment. They would not know, for example, at the start of the day whether their target would spend the day dealing in drugs, meeting criminal associates to plan an armed robbery or meeting a friend, going for a drink or a meal and then visiting the home of another friend. To expect the police and others carrying out surveillance to make a decision beforehand on the expectation of privacy of the target and his associates is unreasonable and impractical.

The level of intrusion is proportionate to the seriousness of the offence or other activity being investigated. Therefore, we have restricted the use of intrusive surveillance so that it can be carried out only on the grounds of serious crime and in the interests of national security or the economic well-being of the United Kingdom. However, the definition in the noble Lord's amendments would incorporate a significant number of other activities undertaken by other public bodies. These range from investigating tax evasion and benefit fraud to health inspections of restaurants.

No central records are kept of the number of covert surveillance operations carried out each year. Estimates by the police suggest that they alone undertake more than 60,000 operations. In addition, operations are carried out by Customs, the security and intelligence agencies and many government departments and local authorities. Those activities are covered within the provisions of the Bill but are not classed as intrusive surveillance. To expect a greater number of such cases to require prior approval would bring these statutory functions to a standstill, significantly restricting the activities of the police and others. We need clear guidelines that operatives can easily follow, setting the specific circumstances and locations where people have a legitimate and reasonable expectation of privacy. People generally have the greatest expectation of privacy in their homes and in their private vehicles when going about their everyday lives.

We have also responded to the special protection given by Article 8 to a person's home. These are the instances in which we have restricted action to serious cases and to which we have given the highest level of protection. There are other situations in which we think that a person's right under Article 8 also needs to be carefully weighed against the purpose for which surveillance is required. These are dealt with as directed surveillance, but we think that the most intrusive categories need to be fenced off, kept separate and made subject to the most stringent safeguards.

I hope that the noble Lord, Lord Phillips of Sudbury, will see that there are practical difficulties in what I know were probing amendments to see where we stood and that in due course he will withdraw them.

I turn to Amendment No. 102, spoken to by the noble Lord, Lord Cope of Berkeley, which might restrict what can be authorised as part of directed surveillance. The words in brackets in Clause 25(2)(b), which he seeks to remove, provide for authorisations in circumstances in which either the suspect has not been identified or the operation under consideration might reasonably be expected to infringe the privacy of people other than the main target. If it is proportionate to the offence under investigation, such surveillance should be capable of being authorised. Surveillance of a known drug smuggler may well involve an invasion of his wife's privacy too. The Bill allows for that, in regulated circumstances and subject to oversight. Another example is that the police might be aware of organised drug dealing in which an exchange of drugs and money takes place but not know the names of those involved. They might well, and justifiably I would argue, carry out surveillance and follow persons who attended the meeting.

Amendment No. 107, again a Liberal Democrat amendment, would make it clear that the consent of the owner of the property to surveillance is irrelevant for the purposes of the Bill. We have no argument with the intent of the amendment, but it is unnecessary. If a property owner—for example, a prison governor acting on behalf of the Prison Service—allows access to plant a device in a prison cell, that should of course be authorised at the highest levels, regardless of that consent. The Bill provides for that. It is a specific gap in the Police Act 1997 and the Intelligence Services Act 1994 which the Bill fills in anticipation of the implementation of the Human Rights Act 1998. The 1994–97 Acts focus on interference with property, which can be circumvented with the collusion of the property owner. The Human Rights Act brings a focus on interference with privacy, which cannot be circumvented in the same way.

Amendments Nos. 108 and 138, again spoken to by the noble Lord, Lord Phillips of Sudbury, would remove from the category of directed surveillance interception with one-party consent. We understand the objection to the provisions but we brought them forward after some thought. The important point is that interception with one-party consent will require the same level of authorisation as directed surveillance. We do not deny that the privacy of the third party in such a call is invaded, so such an activity needs to be authorised and subject to oversight. But, plainly, a kidnap situation in which anxious relatives receive phone calls from the kidnapper or the situation of a victim receiving malicious phone calls are different from listening in to a call between two drug smugglers. That is recognised by the lower level of authorisations required. It is important to keep this flexibility.

I turn to Amendments Nos. 111, 112, 116 and 119, all in the name of the noble Lord, Lord Phillips of Sudbury. They seek to engineer an extra category of covert sources. This would be the category of agents or informants who as part of their tasks themselves become involved in the criminal activity. For these cases the amendments propose the highest levels of authority, such as those required to authorise intrusive surveillance.

These are important but not simple matters; nor are they ones that can be, or should be, addressed in this legislation. This legislation is concerned with intrusion into privacy. Part II of the Bill in particular focuses on situations in which privacy can be invaded for legitimate purposes. It sets out the checks and oversight required for occasions when privacy is invaded in this way. It does all of this to ensure compatibility with convention rights, as will be required when the Human Rights Act comes into force in only a few months' time.

The tasking of covert sources is part of the authorisation process set out in the Bill. If an informant or agent is to be used to derive private information, the use of that source should be authorised. The authorisation granted under this Bill will not include giving immunity from prosecution for criminal activities undertaken by the covert source. That must remain a matter for the prosecution authorities and courts on an individual basis, as now. Additionally, the purpose of an authorisation is not to give legal cover to potential criminal activities but to give a lawful basis to conduct in such a way as to make it ECHR-compliant. Therefore, we believe that the higher levels of scrutiny suggested in these amendments are not needed.

I turn finally to Amendment No. 112A, in the name of the noble Lord, Lord Cope of Berkeley. The amendment seeks to bring anyone who provides information covertly about crime within the definition of a covert source. We have, quite properly, excluded from the terms of this Bill ordinary members of the public who, out of a sense of civic duty, come forward with information to the police about suspected criminal activity. There are many public contact numbers, such as that for Crimestoppers, which encourage people to come forward with information. Such persons may have obtained the information by chance. They do not want to be subsequently involved, or form any long-term relationship, in order to obtain or disclose further information. They are not being tasked by the police or others to establish or maintain a covert relationship for this purpose.

If we were required to treat all such persons as covert sources, with the requirements in relation to record-keeping and handling, we believe that it would bring the total number of covert sources in this country to many hundreds of thousands. It would also create a massive and unnecessary administrative burden; and it might quickly discourage members of the public from providing the police with vital information and bring to an end that source of information. We cannot countenance that. On that basis, I ask the noble Lord—I understand that he raises this issue to hear the view of the Government—to withdraw his amendment in due course.

On Question, amendment agreed to.

[Amendments Nos. 100 to 102 not moved.]

Lord Bach moved Amendment No. 102A: Page 27, line 21, leave out ("and (5)") and insert ("to (5A)").

On Question, amendment agreed to.

[Amendments Nos. 103 and 104 not moved.]

Lord Bach

I beg to move that the House do now resume.

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

House resumed.

Back to