HL Deb 28 June 2000 vol 614 cc927-75

4.56 p.m.

House again in Committee on Clause 25.

Lord Lucas moved Amendment No. 105: Page 27, line 24, after ("vehicle") insert ("owned or occupied by anyone subject to surveillance").

The noble Lord said: I shall also speak to Amendments Nos. 106 and 109. If the noble Lord, Lord Phillips of Sudbury, wants to know how to make small groups, the answer is to ask for them. The Government complain mightily, but they give in eventually.

There are three minor problems with the wording of the Bill on which I should be grateful for elucidation. Amendment No. 105 relates to subsection (3)(a), which says that surveillance is deemed covert if it involves the presence of an individual, or of any surveillance device, on any residential premises or in any private vehicle".

That seems to imply that observing someone's activities from a flat with agreement of the occupants—as one has often seen done on television and elsewhere—or using a private vehicle in the street to watch what is going on in the street counts as covert surveillance. That seems very odd, so I suggest inserting the words "owned or occupied" to show that only when the subject's house or vehicle is being observed from outside does surveillance count as covert.

Amendment No. 106 would delete subsection (3)(b), because I do not believe that merely watching something from outside falls within the ordinary definition of "intrusive". Perhaps the Government do not agree and feel that the entirety of what happens in a house should be sanctified.

Amendment No. 109 would delete subsection (5), which says that subsection (3)(b) does not apply when, the device is such that it consistently provides information of the same quality and detail as might be expected to be obtained from a device actually present on the premises or in the vehicle". I cannot think of any circumstances under which that stipulation would not be satisfied. It must surely be impossible, as long as you draw a line far enough, to gain intelligence from a remote device placed, perhaps, 100 yards away which is as good as that which can be obtained from a device of the best possible quality situated inside the house. By the laws of physics, there must be interference and noise of some sort or another introduced by that distance of, for example, 100 yards which will mean that subsection (5) is always satisfied.

I should be grateful for some guidance from the Government as to where they think the line should be drawn between "intrusive" and "not intrusive" and how the wording in subsections (3)(b) and (5) work together to make that a line which is understandable to officials in practice. I beg to move.

Lord Monson

I have no firm views on Amendments Nos. 106 or 109. But it seems to me that if the Government do not accept Amendment No. 105, or something very like it, they will be shooting themselves in the foot. As the noble Lord, Lord Lucas, pointed out, if Clause 25 is left unamended, the people doing the surveillance will be caught and that is surely not the Government's intention.

Lord Phillips of Sudbury

Had the noble Lord, Lord Lucas, not tabled these amendments, we should have tabled similar amendments. We wish to support them.

In subsection (5), to which Amendment No. 109 relates, it says that surveillance, is not intrusive unless the device is such that it consistently provides information of the same quality and detail as might be expected to be obtained from a device actually present on the premises". That seems to me to be an extraordinarily high test and largely reduces the protection around intrusive surveillance which other parts of the clause are designed to provide.

I also raise the fact that the Data Protection Commissioner, whose views must surely be given some weight in these matters, responded to the Bill in March of this year by citing the instance of a picture from a long-lens camera. That may not be quite as clear as a picture from a camera placed in the room but it did not necessarily reduce the infringement of privacy.

Finally, in response to a reply from the noble Lord, Lord Bach, on an earlier amendment moved from these Benches, from a practical standpoint, in terms of working those complex provisions, how is one to know in advance whether the quality and detail of information obtained by a device is or is not of a consistent quality commensurate with information obtained from within the premises?

All in all, we believe that those provisions are impractical, unworkable and unnecessary and that the Bill would be improved without subsection (5).

Lord Bach

We were a little unclear about the purpose of Amendment No. 105 tabled by the noble Lord, Lord Lucas. The amendment inserts the words, owned or occupied by anyone subject to surveillance", after the word "vehicle". But Clause 45 already defines "private vehicle" as, any vehicle which is used primarily for the private purposes of the person who owns it or of a person otherwise having the right to use it". That formulation in Clause 45 is intended to catch the occasions when a vehicle might be in use and being used for private purposes.

As before, that distinction may not be perfect in terms of pure issues of privacy but we need to give a clear steer as to the circumstances in which an authorisation will be appropriate. The Bill does that and it is compatible with convention rights in that regard.

Amendments Nos. 106 and 109 would lessen the controls placed on the use of intrusive surveillance. The aim of Part II has been to cover the activities of law enforcement and other agencies and to place the most stringent controls on those activities where a person has the highest expectation of privacy—in his home or his own vehicle.

To accept these amendments would remove from that category those operations or investigations where the police or others used highly sophisticated equipment—for example, laser microphones—to obtain details of a conversation inside a person's home without installing a device on those premises. We are not prepared to lessen that control which is why we cannot accept the amendments.

I am asked about the person carrying out the surveillance. He would have lawful authority by virtue of the authorisation itself.

Lord Lucas

In Clause 45 the definition of a "private vehicle" is, any vehicle which is used primarily for the private purposes of the person who owns it", and residential premises are similarly defined. So let us suppose that we have a policeman sitting in my flat, watching some drug dealing going on in the street below. Surely, that is caught by the current wording of Clause 25(3)(a) to mean that that is intrusive surveillance, merely because the policeman is sitting in my flat watching someone else because my flat is a convenient place from which to undertake the observation. There is nothing in the definition of "residential premises" or "private vehicle" to say that those must be owned or used by the person who is the subject of the surveillance.

That is the purpose of Amendment No. 105. Otherwise, any surveillance operation which in any way makes use of residential premises or a private vehicle becomes intrusive. That seems to me to be extremely odd.

As regards Amendments Nos. 106 and 109, I understand the Government's position to be that the home is sacrosanct. I am quite prepared to work with that position. But then, as the noble Lord, Lord Phillips of Sudbury said, subsection (5) is lunatic. There has been reference to a laser microphone. That uses the vibrations in a pane of glass. So the sound quality depends on the way in which a pane of quite thick glass, perhaps even double glazing, responds to sound waves. Under any circumstances, from the absoluteness of physical laws, it has to be worse than having a microphone on the premises. So subsection (5) will always be satisfied, so Clause 25(3)(b) has no effect. What the Government are saying they wish to do is entirely negated.

If we accept entirely what the Government wish to do, then they must entirely recast subsection (5) in some way to take out that extremely high test.

Finally, I understand why an Englishman's home is his castle, and we should treat that seriously. But why is there this passion for vehicles? I thought that it was this party which was meant to treat the private car as something special. Is not the party opposite meant to be encouraging the use of public transport? If this law comes into effect, everyone will have to use cars because then they can have a mobile source of privacy. Cars will be taken to the office because people will then be able to dodge out of the office into the car and not be subject to surveillance. That seems very odd.

I should be grateful for a response on those three points because I do not believe that I have been given a satisfactory answer on anything.

Lord Bach

The noble Lord has raised a difficult point. We want to think further about it, particularly as he was supported by the noble Lord, Lord Phillips of Sudbury. Therefore, if the noble Lord will withdraw the amendment, I shall take it away and think about the points he made, particularly in relation to subsections (3)(b) and (5) to see whether or not they are inconsistent. We are grateful to the noble Lord for raising this issue and we shall come back to him on it.

Lord Lucas

A little flattery will get one everywhere! I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 106 to 109 not moved.]

Lord Bach moved Amendment No. 110: Page 27, line 43, at end insert— ("(5A) For the purposes of this Part surveillance which—

  1. (a) is carried out by means of apparatus designed or adapted for the purpose of detecting the installation or use in any residential or other premises of a television receiver (within the meaning of section 1 of the Wireless Telegraphy Act I949), and
  2. (b) is carried out from outside those premises exclusively for that purpose,
is neither directed nor intrusive.").

On Question, amendment agreed to.

[Amendment Nos. 111 to 112A not moved.]

Clause 25, as amended, agreed to.

Clause 26 [Lawful surveillance etc.]:

Lord Cope of Berkeley moved Amendment No. 113: Page 29, line 4, leave out subsection (3).

The noble Lord said: Amendment No. 113 draws attention to subsection (3) of Clause 26, which says that, The conduct that may be authorised under this Part includes conduct outside the United Kingdom". I was slightly surprised that that type of surveillance, to be conducted by the various bodies to which the Committee will turn later, is to be authorised outside the United Kingdom. Presumably such surveillance also has to be lawful in the other country concerned, unless it takes place on the high seas. That is my first point.

In regard to other countries' surveillance here, I can see nothing in the Bill that would allow the equivalent authorities of other countries—the police and so on—to carry out intrusive surveillance here. From our point of view, that seems to be a good thing, but one would have thought that sauce for the goose would be sauce for the gander. If we are not to permit the police of other countries to carry out surveillance here, except through our police or customs, presumably we should not suggest that our police should conduct them elsewhere, but should seek the co-operation of the police in the country concerned. I would be grateful if the Minister would comment on that. I beg to move.

Lord Bach

We understand the intention of the noble Lord in moving this amendment. I shall explain why the provision is in the Bill and its effect. I shall also try to answer his questions.

The provision at Clause 26(3) would allow for authorisations under this Bill to be given for the use of surveillance or covert sources where some or all of the activity was to take place outside the UK. That can be seen to be directly relevant in the case of an intelligence agency with a remit to operate abroad, but it may also be relevant in some other areas such as drugs investigations by the police and customs.

There are geographical limits to the authorisation of intrusive surveillance. Those are set out, principally in respect of police forces, at Clause 31 of this Bill. In respect of authorisations that can have application abroad, the effect of the authorisations would be to provide reassurance to UK courts that a particular activity was, first, in accord with ECHR principles; secondly, authorised at a sufficiently high level; and, thirdly, subject to independent oversight, should evidence subsequently be brought before a court or should a Human Rights Act challenge based on that activity be made in our courts.

Without such a provision, evidence—when produced in a court in the UK—may be vulnerable to the charge that it had not been authorised in accordance with the law as required by Article 8 of the convention.

The provision does not grant a general licence to operate abroad. If the force or agency in question has no remit to act overseas, this Bill will not give it one. Indeed, for most such operations, the authorisation would cover an operation in which foreign authorities were in the lead, or at least involved. This provision would merely serve to protect any evidence arising from such operations when brought before a UK court. This is clearly desirable in helping to convict major and international criminals.

The noble Lord, Lord Cope, asks about other countries carrying out surveillance here. Foreign law enforcement agencies would obtain authorization through organisations here; they would not act here without consultation and without the approval of the relevant agency based in the UK.

Lord Cope of Berkeley

I am grateful for that explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 26 agreed to.

5.15 p.m.

Clause 27 [Authorisation of directed surveillance]:

Lord Phillips of Sudbury moved Amendment No. 114: Page 29, line 32, leave out paragraph (g).

The noble Lord said: The point of Amendment No. 114 is relatively simple to explain. Clauses 27 and 28 of the Bill provide the circumstances in which authorisation can be given, on the one hand, for direct surveillance and, on the other hand, for covert human intelligence. As the Minister said earlier, it is part of the protection supposedly provided to citizens by this Bill and its extraordinarily wide powers, that that authorisation procedure is clearly defined and battened down.

The Committee will have noticed that, according to both clauses, authorisation can be given only where it is necessary on grounds specified in subsection (3) of Clause 27. That subsection is in the widest terms and includes national security, preventing crime, preventing disorder, in connection with economic well-being, public safety, public health, collecting tax and so on. The final paragraph, (g), states that the Secretary of State can, by order, specify other grounds on which these key authorisations can be given.

I believe that Members of the Committee agree this is a difficult Bill, an important Bill, and one in which, more than normal, we must be vigilant in protecting basic freedoms and liberties—not, I emphasise, that the Government are trying to put one over on citizens, but it is common ground that the denseness and complexity of the drafting of this legislation require us to be vigilant.

I draw to the attention of the Committee the 18th report of the Select Committee on Delegated Powers and Deregulation, published earlier this month. It states particular concern for the subsections that Amendments Nos. 114 and 117 address. The report states: The Committee is of the opinion that the defining of the purposes for which an investigatory power may be used is a vital part of placing restrictions on the exercise of those powers and does not consider it to be appropriate to delegate to the Secretary of State what appears to be an unlimited power to specify other purposes".

It goes on to say: It appears, therefore, that the apparently unlimited powers in"— these clauses— may be intended to allow no more than the addition of the protection of morals and the rights and freedoms of others to the purposes set out in those clauses". The Select Committee gathered that from a government memorandum to the Select Committee. The report continues: If this is so, why are the powers not limited in this way?"— for example, set out on the face of the Bill— Paragraph 19 of the Memorandum argues that section 6 of the Human Rights Act will apply and that the powers are thus constrained by Article 8(2) 'although that limitation need not appear on the face of the bill"'. That is a quote from the Government's memorandum. The crucial finale of this matter is as follows: The Committee does not accept that it is appropriate to use wide terms to define a new power and to rely on the Human Rights Act to restrict its scope when it is possible to define it so that it covers only its intended scope".

I give three cheers for that. I believe this is the first clear example that we have had before us of what I would call thoroughly lazy drafting, where the government of the day are content not to define what is or is not allowed by the government machinery in all its aspects; where they are willing to fall back on a thoroughly weak and inadequate protection by saying, "Don't worry, old chap, just go and look at the Human Rights Act and I am sure you will find a remedy there". That is simply not an answer in a case of this nature. We believe that this is an important provision that the Select Committee perfectly clearly condemns. I invite the Committee to do the same. I beg to move.

Lord Cope of Berkeley

I give one cheer for government Amendments Nos. 115 and 118, which take up part of the recommendation of the Delegated Powers and Deregulation Committee that any power of this character should be subject to affirmative resolution. As the noble Lord, Lord Phillips, said, the actual recommendation of the committee goes much further and, although it is not precisely covered in the Liberal Democrat amendments, the noble Lord has a very good point.

Lord Bach

In replying to the noble Lord's amendments, perhaps I can speak also to the government amendments in this group, Amendments Nos. 203B, 205, 206, 208A to 208C and 115.

The noble Lord, Lord Phillips, quoted from a report of the Delegated Powers and Deregulation Committee. But in a later report that committee accepted the Government's reasons for doing what we are doing. It may be therefore that the noble Lord is wrong to rely on the 18th report and should rather look to the 21st report for an explanation of what we are doing and a rejection of what he proposes.

One of the recommendations of the Select Committee on Delegated Powers and Deregulation was that we should tighten up the arrangements for adding to the grounds on which the various investigative powers can be used. As has already been indicated, we considered that and accepted the weight of the argument. So we tabled the government amendments which ensure that, in respect of each of the powers at issue, any addition to the purposes for which those powers can be used will be subject to the affirmative resolution procedure.

We have already explained why we do not believe it is necessary to act on the recommendation of the committee that the Bill should explicitly recognise that none of the orders could include purposes which would go beyond those permitted in the convention on human rights. The Delegated Powers and Deregulation Committee, in its latest report, accepted our reasons.

As we have made clear, the powers in this Bill will be limited by the Human Rights Act. As a matter of law, not simply as a practical limitation, the Secretary of State may make no order that is incompatible with the convention. It is our view that to state on the face of the Bill that the convention rights must circumscribe any use of these orders will add nothing to the situation in law. That is an important point; it will be relevant to all legislation in the days post implementation of the Human Rights Act.

Turning to the Liberal Democrat amendments, any additions to the purposes on the face of the Bill will, as a matter of law, have to fall within the exceptions set out in Article 8(2) of the convention and should be made by means of the affirmative resolution procedure. That has now been accepted by the Delegated Powers and Deregulation Committee as giving appropriate parliamentary control and this Committee should recognise that when debating these amendments. The 21st report deals with that matter.

What scope does that leave for adding to the purposes? I need to answer this today as Amendments Nos. 114 and 117 seek to remove the power to add purposes altogether in a fashion beyond that recommended by the Delegated Powers and Deregulation Committee. The two permitted purposes in Article 8 of the ECHR, which we have not included in the Bill, are, for the protection of morals", and, for the rights and freedoms of others". That was because we could think of no circumstances where public authorities would want to use covert techniques on those grounds. But we thought it necessary to provide the power to enable the grounds to be extended for those purposes should that prove necessary. We can see a time when it may be necessary to use this enabling power in some limited circumstances which would fall within, rights and freedoms of others". Once the HRA is implemented and we have more idea of how it will impact on the activities of public authorities, we may very quickly need to look to adding purposes to the list set out and, if we do want to add purposes, we shall want to limit them as far as possible.

The Delegated Powers and Deregulation Committee suggested that any use of the order-making power might be limited specifically to adding the purposes, for the protection of morals", or, for the rights and freedoms of others", as mentioned by the noble Lord, Lord Phillips. Those are two quite wide-ranging purposes. If possible, any extension of the powers ought, in our view, to be more specific. Certainly, we should leave that possibility open in the interests of limiting as far as possible the intrusions on privacy.

Members of the Committee will note that this is the approach we have adopted with some of the purposes already listed in the Bill. They do not follow exactly the wording of the convention rights. Some are tailored specifically to meet the requirements of investigating agencies in the modern age. We believe the purposes described fall within those allowed under Article 8(2) and we have used a formulation to narrow the purposes as far as possible.

Of course these are important issues and they are inextricably linked with the implementation of the Human Rights Act. We tabled amendments which we feel ought to provide all the reassurance the Committee requires. We do not claim a monopoly of wisdom on the Human Rights Act—we are all feeling our way—but I seek to persuade the Committee that we have done enough in that regard. I hope that, having heard my explanation, the noble Lord, Lord Phillips, will feel able to withdraw his amendment.

Lord Phillips of Sudbury

I am grateful for the Minister's response. However, I urge on him the intermediate position which the Select Committee proposed; that is, rather than simply leave it to an affirmative resolution, which would of course be an improvement on the Bill, the Bill should contain on its face the two categories to which reference has been made—morals and purposes. That would be the best way of dealing with this matter. It would not leave a completely unknown category to be added by affirmative resolution in the future.

As the cliché has it, the price of liberty is eternal vigilance. It is not a safe way of legislating for us to assume that the nice, reasonable noble Lords who sit opposite will always be in their places. That compromise would therefore be the best compromise. One hopes that the Government will consider it. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bach moved Amendment No. 115: Page 29, line 41, at end insert— ("(15) The Secretary of State shall not make an order under subsection (3)(g) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.").

On Question, amendment agreed to.

Clause 27, as amended, agreed to.

Clause 28 [Authorisation of covert human intelligence sources]:

[Amendments Nos. 116, 116A and 117 not moved.]

Lord Bach moved Amendment No. 118: Page 31, line 8, at end insert— ("(5A) The Secretary of State shall not make an order under subsection (3)(g) unless a draft of the order has been laid before. Parliament and approved by a resolution of each House.").

On Question, amendment agreed to.

Lord Phillips of Sudbury had given notice of his intention to move Amendment No. 119: Page 31. line 21, at end insert— ("( ) 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 noble Lord said: Perhaps 1 may say a word on this amendment because I was rather caught on the hop before the break for the Statement.

Many of the points made by the Minister in responding to this and the other amendments in the group will bear scrutiny when we see Hansard. I hope I shall be able to communicate with the Minister before Report stage because we are all striving to make the best of this Bill. For the moment I shall leave it at that, except to say this. The Minister said that in relation to this group of amendments he did not think the provisions were for this legislation. I do not know on what possible basis that can be so, given that the Bill provides precisely for the arrangements vis-à-vis informers.

[Amendment No. 119 not moved.]

Clause 28, as amended, agreed to.

5.30 p.m.

Clause 29 [Persons entitled to grant authorisations under ss. 27 and 28]:

Lord Bach moved Amendment No. 120: Page 31, line 43, leave out subsection (4) and insert—

("(4) A public authority is a relevant public authority for the purposes of this section—

  1. (a) in relation to section 27 if it is specified in Part I or II of Schedule (Relevant public authorities); and
  2. (b) in relation to section 28 if it is specified in Part I of that Schedule.

(4A) The Secretary of State may by order amend Schedule (Relevant public authorities) by—

  1. (a) adding a public authority to Part I or II of that Schedule;
  2. (b) removing a public authority from that Schedule;
  3. (c) moving a public authority from one Part of that Schedule to the other;
  4. (d) making any change consequential on any change in the name of a public authority specified in that Schedule.

(4B) The Secretary of State shall not make an order under subsection (4A) containing any provision for—

  1. (a) adding any public authority to Part I or II of that Schedule, or
  2. (b) moving any public authority from Part II to Part I of that Schedule,
unless a draft of the order has been laid before Parliament and approved by a resolution of each House.").

The noble Lord said: In moving this amendment on behalf of my noble friend, I shall speak also to Amendments Nos. 121, 159 and 207. There was much discussion in another place about the naming on the face of the Bill of those public authorities using Part II powers. This issue was also raised by the Delegated Powers and Deregulation Committee. We have listened to the arguments put forward and our response is the schedule provided by this group of amendments. The schedule is divided into two parts. Part I lists all those public authorities empowered to authorise directed surveillance and the use and/or conduct of covert sources. Part II lists those authorities empowered only to authorise directed surveillance.

The schedule differs markedly from early versions of the list of public authorities using these powers. First, it names only the public authorities and does not go into details about which agencies within each department will be using these powers. That is because the public authority is the statutory body, not its constituent parts. However, we are intending to narrow down the different agencies within a public authority that can authorise activity under Part II of the Bill. This will be achieved by means of the order produced under Clause 29, which will specify precisely the individuals holding such offices, ranks or positions within the relevant public authority who can authorise activity. For example, the order might specify a senior immigration officer within the Immigration Service of the Home Office as able to authorise the conduct or use of a covert source.

Secondly, changes and additions have also been made to the list. The first provisional list was published during the Committee stage in another place. We made it clear then that the list was being developed and that there would be changes. Since that time we have found that a greater number of public authorities use Part II powers than we had first thought. This has been one of the benefits of the whole exercise. We now have a much clearer picture of the range and types of activity that are going on in public authorities, but we are still learning about public authorities whose activities had not previously come to our attention. This learning process is likely to go on for some time. That is why it may be necessary to add further public authorities as a result of case law developed from judgments on the definition of what is a "public authority" once the Human Rights Act (the HRA) comes into force. That is why the amendments provide for the Secretary of State, by order, to add or remove public authorities from the schedule or to move an authority from one part of the schedule to the other.

Any addition, or movement from Part II to Part I of the schedule, will first need to be approved by Parliament. Of course, that does not mean to say that we have rejected out of hand the recommendation of the Delegated Powers and Deregulation Committee that we should remove the power to add public authorities to the schedule. We have taken careful note of the committee's view, as detailed in its 21st Report, that we should be able to produce an exhaustive list of public authorities now and that it should be for Parliament to decide by means of primary legislation whether any additional existing public authorities should be added to the schedule. Any order adding a body to the schedule would now be subject to parliamentary approval through the affirmative resolution procedure.

However, there is something between us and the Delegated Powers and Deregulation Committee on the issue. We should like to give the matter further thought. Indeed, we propose that a meeting should take place between the chairman of that very distinguished committee and my noble friend the Minister who sits beside me. On that basis, I beg to move Amendment No. 120.

Viscount Astor

We are grateful to the Minister for his explanation of the amendments. However, before I ask him a number of questions in that respect, I have before me the text of Clause 29 where subsection (4)(d) refers to, any of the intelligence services". The reference to other public authorities in the clause is very definitive; for example, there is reference to the National Criminal Intelligence Service, the National Crime Squad and the Ministry of Defence, and so on. Therefore, when the Minister responds, can he tell me whether the phrase, any of the intelligence services", is a definitive or legal term? Now that the intelligence services publish booklets stating who and where they are and, indeed, are subject to parliamentary scrutiny, I wonder why the Bill does not set out the intelligence services involved. It seems to me that that leaves the matter open to debate as regards what is and what is not an intelligence service. As they are now subject to Parliament, would it not be better to define them as such?

Lord Bach

Perhaps I may deal with that point now. As I understand it, Clause 72 defines "intelligence services". Yes, indeed, the definition is to be found at lines 8 and 9 on page 77. I hope that that answers the noble Viscount's question.

Viscount Astor

I am extremely grateful to the Minister for pointing that out. I am glad that, like me, it took him a little time to find the actual wording.

I turn now to the amendments. I have a number of questions about the list, the first of which is general and relates to a matter that was touched on earlier. We are adding local authorities and various other bodies to this list, but I am rather concerned about how this will work. Presumably, some local authorities will not have the resources to do this on their own. Will local authorities be allowed to use private contractors for this purpose; for example, will they be able to use private detective agencies? Alternatively, will this have to be done by employees'? Can such activities be contracted out? If that is the case—I do not know whether it is—how will this be organised to ensure that those concerned keep within the rules that apply to such activity?

I note that the schedule in Amendment No. 159 includes a reference to the National Assembly for Wales. As far as I understand it, the reason for its inclusion is because the Assembly is an executive body, as opposed to the Scottish Parliament, which is a Parliament. The amendment simply refers to "The National Assembly for Wales". Can the Minister say whether that implies that the Assembly could have a wider remit when it comes to using these powers than, say, the Department of Health or the Home Office, which are confined within a rather narrow remit? It is purely a probing question, but I should be grateful to receive an answer from the Minister.

Further, under "Other bodies" in the schedule set out under Amendment No. 159, one sees that the Food Standards Agency and the Intervention Board for Agricultural Produce have been included in the list. I am not quite sure why those bodies are there. I understand that there may, perhaps, be a reason for including the FSA because the Bill talks about the economic well-being of the country and, indeed, about protecting public health. I should be interested to know how the agency will use its powers. Similarly, I am rather puzzled as to why the Intervention Board for Agricultural Produce has been included in the list. It seems to me that we are opening up farmers in this country to some kind of intrusive—or even unintrusive—surveillance. I do not know how this will work. I believe that the Government need to explain why these bodies have been included in the list.

Looking further down the list in the schedule, one finds reference to the Royal Pharmaceutical Society of Great Britain. I am not aware that that is either a public body or a quango. I should be grateful if the Minister could explain why the society has been included. I may be wrong and it may indeed be a public body; hut, if it is not, I do not understand how it will be subject to any form of control. That seems to me to raise some interesting questions.

I have asked specific questions about the listings, but I have a more general question about local authorities. As the Minister said, I understand that the Government will be looking to see how this works in the future. However, it would be helpful to know just how many local authorities will actually sign up to start with—for example, will it be a small number and, if so, how quickly do the Government think it will grow? It would be most informative to know what evidence the Government have in that respect.

Lord Lucas

I hope that in the course of his inquiries the Minister will ask the Department for Education and Employment whether it ought to be on the list.

During my time as an education spokesman several enterprising frauds of Nigerian origin that obtained money from university grants when they should not have done so were investigated. Presumably the whole matter of the repayment of student loans will at some stage require some kind of checking up on the financial status or whereabouts of former students.

Lord Desai

What about the drugs czar? Is the drugs czar independent of the Home Office? Is he a separate agent? I can think of many other examples but that of the drugs czar worries me because he should be included in the list.

Viscount Goschen

Perhaps czars could comprise another category to be defined at a later time.

I welcome the Minister's attempt in these government amendments to try to be more specific in regard to what kind of agencies will fall under the provisions of the Bill. My intervention relates to points that I raised at an earlier stage of today's proceedings.

The Minister was good enough to say that the Bill regulates for the first time the use of surveillance, be it covert or intrusive, and that previously a number of these activities were not regulated in any way. If the schedule applies only to public bodies—there has been much discussion about those public bodies—will the Minister clarify what is its effect on those bodies that are not covered by it? Can they continue as before? Are they in a more advantageous or a less advantageous situation than those bodies which are classified as public? That relates to the point made so ably by my noble friend Lord Astor; namely, whether a public body is able to find a loophole here. Can they use a non-public body to perform their work for them?

I have a final question on the amendment we are discussing although the noble Lord may say that it applies to another part of the Bill and that we may preempt the clause stand part debate. What happens to information that is obtained using covert or intrusive surveillance? I am sure that the noble Lord will point out the relevant provision in the Bill. Are there definitive restrictions on the use to which such information may be put? Earlier my noble friend Lord Cope spoke of the BBC carrying out investigative surveillance. One has often seen on television film shot by the customs agency, for example, in pursuance of an investigation. That may involve covert surveillance. Will it continue to be appropriate for such material to be used for public entertainment, as has occurred in the past, or are there additional restrictions in the Bill to cover such eventualities?

5.45 p.m.

Lord Bach

These government amendments have elicited many questions from Members of the Committee, all of which deserve an answer. The noble Viscount, Lord Goschen, asked again how bodies that are not public authorities are affected by the Bill. He deserves a fuller response than he obtained on the previous occasion he raised that matter.

Clause 71 states, in terms, that nothing is made unlawful by Part II of the Bill. This part of the Bill is designed solely to allow only public authorities to comply with the Human Rights Act, which deals with public authorities and not with private individuals. It places a duty on public authorities to act in accordance with the Human Rights Act. The authorities that are affected are listed in Amendment No. 159. It is a matter for individual organisations to take a view as to whether they are public authorities. If they believe that they are, they can be added to the list by order.

Bodies that are not public authorities are not affected in any way by the Bill or by the Human Rights Act. Their position in law will be exactly as it was before the Bill becomes law. In other words, their position remains unchanged. If their activities are caught by the criminal law, so be it. However, if their activities are not unlawful, that will continue to be the case.

Viscount Goschen

I am grateful to the Minister for those helpful comments, which have certainly assisted my understanding of the Bill. However, I referred to a private detective agency being able to pursue an activity that is lawful under the criminal law. A public authority, however, would be subject to all kinds of restrictions in pursuing that activity. Could the public authority contract out that work?

Lord Bach

I do not believe that a public authority could contract out fully because, in the end, it would remain liable and it would be caught by the provisions of the Bill; in other words, it would have to act in accordance with the Human Rights Act.

The noble Viscount, Lord Astor, queried some of the names on the list. The National Assembly for Wales is in the same position as any other public authority mentioned in Amendment No. 159. The noble Viscount referred to three bodies and asked why they were included in the list. At the risk of speaking for longer than I had intended, I should explain why that is the case. The noble Viscount may not be aware—I was certainly not aware of this—that the Food Standards Agency is responsible for the enforcement of meat hygiene and related controls in licensed slaughterhouses. Surveillance is used to target individuals or premises, such as purchases at markets or activity at premises; for example, deliveries to farms where illegal activity is suspected to be taking place. The Food Standards Agency needs to be able to undertake such investigations to carry out its function as an enforcement authority for meat hygiene.

The Intervention Board for Agricultural Produce has an anti-fraud unit which uses surveillance to monitor milk quotas. Under the CAP, the UK is permitted to produce a specified quantity of milk a year. If that quantity is exceeded, a levy is raised. Therefore, all producers and purchasers of milk are meant to be registered and have their own quota. If that quota is exceeded, they become liable to levy. There is a market in black market milk where farmers produce milk and sell it to dairies without declaring it to the intervention board as they are meant to. It follows that surveillance operations are conducted where farms have been observed to ascertain whether milk tankers have collected milk.

The noble Viscount mentioned the Royal Pharmaceutical Society, which is considered to be a public authority and is therefore included in the list. That society has the power to enforce various sections of the Medicines Act 1968 and the Poisons Act 1972. It uses covert surveillance to ensure that there is no breach of the Medicines Act or the Poisons Act by pharmacists or businesses registered with them. As I say, it appears that not only have the Government learned more about public authorities but we are now sharing this information with the Committee. More bodies may need to be added to the schedule in due course. I believe that I have answered most of the questions that have been asked.

Lord McNally

Reference has been made several times to where a private body carries out the functions of a public body. That happens in a number of areas; for instance, where there are private security firms operating side by side with police forces. Where that happens, will the private body be expected to observe the standards of the public body concerned? Does the public body set the standards in observation of legislation?

Lord Bach

The answer that I have received is that if the situation is as the noble Lord, Lord McNally, describes, it would in effect make the private body a public authority for the purposes of any surveillance or covert action that it may be taking. I think that that is quite a reassuring answer in the context of the Bill.

Viscount Goschen

I am sorry to press the Minister further. Perhaps he will address the point that I raised about the uses to which information and televisual data gained by covert surveillance can be put.

Viscount Astor

While the Minister is considering that question perhaps I may thank him for his helpful explanation and ask him one simple question. I do not need an answer today, but perhaps he will write to me between now and Report stage. I am grateful for the explanation that the Royal Pharmaceutical Society of Great Britain is a public body. I must say that I was unaware of that. If it is a public body, it would be interesting to know to whom it is responsible. Is it responsible to a government department, to Ministers or to Parliament? Perhaps the Minister will write to me before the next stage and explain that. When we are adding all these public bodies, it would be useful to know where their responsibilities lie and to whom they are answerable.

Lord Bach

I shall certainly write to the noble Viscount setting out how the society becomes a public authority. I am conscious of the question, which has now been asked twice, as to what use will be made of the information that is gained from surveillance. I must be very careful how I respond to the noble Viscount. Obviously in certain instances it can be used to make out a case against a criminal, a spy or a terrorist. However, what the noble Viscount wants to know is whether it can be used, for example, in a television documentary in order to make a point about wrong-doing. It is quite clear that the authorisations that are granted will have to be granted on specific terms, and of course the more intrusive the surveillance the more specific the terms have to be. To answer the noble Viscount's question fully it will be necessary for me to take proper advice and then to write to him with the use to which it can be put.

Lord Lucas

If the Minister intends to write to noble Lords, I think that it certainly would be helpful to have some enlargement on the nature of public authority. I have looked up "public authority" in the Human Rights Act. Under the Act, a public authority is, any person certain of whose functions are functions of a public nature", but not if the nature of the Act is private. I find that a fairly confusing definition. I should be grateful for something which translated that into ordinary commonplace English so that we can understand the scope of the Bill in practice.

On Question, amendment agreed to.

Lord Bach moved Amendment No. 121: Page 32, line 18, leave out from ("authority") to second ("by") in line 19 and insert ("added to Schedule (Relevant public authorities) by an order made under subsection (4A)").

On Question, amendment agreed to.

Clause 29, as amended, agreed to.

Clause 30 [Authorisation of intrusive surveillance]:

[Amendment Nos. 121A to 123 not moved.]

Lord Bach moved Amendment No. 123A: Page 33, line 32, at end insert— ("( ) the chief constable of every police force maintained under or by virtue of section 1 of the Police (Scotland) Act 1967 (police forces for areas in Scotland);").

The noble Lord said: In moving this amendment I wish to speak also to Amendments Nos. 124A, 124B, 124C:, 127A, 136A, 136B, 138A, 194A, 194B, 195, 195A, 203A, 211B and 230.

As the Committee knows, a separate Regulation of Investigatory Powers (Scotland) Bill has been introduced in the Scottish Parliament to cover the devolved activities of public authorities in Scotland. Although we hope the provisions in both Bills will be similar, so as not to impede joint cross-border operations, we also need to provide cover for devolved activity authorised in Scotland which crosses the Border and continues in another part of the UK, and for activity authorised in the rest of the UK which crosses the Border into Scotland. These government amendments, which we have discussed and which have been agreed with the Scottish Executive, provide that cover.

We already have provisions in Part II of the Bill which extend the Bill to Scotland in respect of reserved functions and public authorities with reserved functions. But we now extend all of Part II to Scotland, subject to the proviso that, in certain cases, an authorisation cannot be granted under the Bill where all the conduct is likely to take place in Scotland. That is covered by the Scottish equivalent of the Bill. These amendments ensure that conduct authorised by public authorities in England, Wales and Northern Ireland which cross the Border into Scotland will he lawful. They also extend the provisions of the Bill to provide lawful authority for a limited period of time for the activities of Scottish police forces and other public authorities with devolved functions in Scotland, where the conduct is authorised under the Scottish Bill and the activity crosses the Border out of Scotland into other parts of the UK.

Members of the Committee may think that this removes the need for a separate Scottish Bill. However, that is not the case. The amendments provide that an authority should not be obtained under the Bill if the conduct is all likely to take place in Scotland.

Lawful authorisation for conduct obtained under the Scottish legislation will continue if circumstances arise which take the conduct outside Scotland. Such an authorisation will continue to have lawful authority on each occasion that such circumstances arise and will last for three weeks, beginning with the time when the circumstances arose.

An authorisation for directed surveillance obtained by a Scottish police force under the Scottish Bill will continue to give lawful authority, if circumstances arise which mean that officers from that force need to pursue their target across the Border into England. The lawful authority will continue for three weeks on every occasion when circumstances arise which necessitate crossing of the Border. I beg to move.

Lord Cope of Berkeley

I wish to raise a point with regard to the overlap between the Scottish and the Welsh legislation. I understand that the Scottish Parliament has changed the wording of the Scottish Act a little. For example, Clause 30(2) of the Bill says that the Secretary of State cannot grant an authorisation under the Scottish legislation for intrusive surveillance unless he is satisfied that the authorisation is necessary, not that he just believes that it is. There is a slightly higher test in Scotland. Presumably, therefore, under Amendment No. 123A, the Scots will need to fulfil a lower test in England than in Scotland.

Lord Lucas

In this context, perhaps I may ask out of interest whether the phrase, in the interests of the economic well-being of the United Kingdom", would come into force if someone was planning to move a large operation from Scotland to England, or is that ruled out by that phrase?

On Question, amendment agreed to.

6 p.m.

Lord McNally moved Amendment No. 124: Page 33, line 46, at end insert— ("(7) No authorisation shall take effect until such time (if any) as—

  1. (a) the grant of the authorisation has been approved by an ordinary Surveillance Commissioner; and
  2. (b) written notice of the Commissioner's decision to approve the grant of the authorisation has been given to the person who granted the authorisation.").

The noble Lord said: The amendments in this grouping make a common point; that is, to establish whether the powers vested here are—to use a word favoured by the noble Lord, Lord Bassam—proportionate. The clause covers authorisations for intrusive surveillance. The aim behind the amendments is to ensure that such authorisations are proportionate and that they bring all surveillance under the oversight of the surveillance commissioner.

All noble Lords concerned with the Bill know that a great deal of briefing has been submitted. One piece sent from the Cyber-Rights and Cyber-Liberties Group (UK) caught my eye because it summed up very well the thinking that lies behind these amendments. The group sets out five hurdles that should be cleared before the powers are used.

First, that the action will provide a clear net benefit for society. That is, the benefits are clear and are achievable by the measures proposed, without a detrimental impact on the rights of honest citizens … and one that is widely accepted as tolerable in the light of the gains secured". Secondly, That the measures proposed discriminate effectively between criminals and honest, law-abiding citizens. Therefore, they should be balanced and should not, in an impetuous desire to counter crime, expose all honest Internet users to … risks". Thirdly, That of all the options available they are the best in the sense that they are the most effective in countering criminals". Fourthly, They should be based on clearly defined policy objectives which citizens understand and which command widespread public support". Fifthly, They should he enforceable, transparent and accountable".

Those principles could easily apply to other parts of the Bill, but I believe that they apply particularly well to Clause 30. In essence these amendments are an exercise in wing-clipping. It is intended that the Minister should respond wherever he feels that those wings should not be clipped. I beg to move.

Lord Bach

I am grateful to the noble Lord, Lord McNally, for his brief introduction to this series of amendments. It is clear that they probe whether the Government's approach to the important issues surrounding intrusive surveillance is absolutely right. Perhaps I may deal with each amendment in turn.

Amendment No. 124 seems to have two aims. With regard to police and customs activities, it seeks to rule out the situation in which, in urgent cases, intrusive surveillance authorisations can take effect without the prior approval of the surveillance commissioner. Perhaps this arises through some genuine concern over the safeguards in the existing system in the Police Act 1997. I am sure that the noble Lord will accept an assurance that he need not worry. I can reassure him on this point.

The Chief Surveillance Commissioner has set up a system for giving approval to authorisations under Part III of the Police Act 1997 which means that there is a commissioner on duty at all times. The procedure is supported by secure communications, which means that a response can be obtained from a commissioner within a very few hours. From when the Office of Surveillance Commissioners started operation in February 1999 to April of this year—a period of some 15 months—only 12 cases had been dealt with under the urgency procedure; that is, an authorisation normally requiring prior approval of a commissioner has taken effect immediately without awaiting that approval because of the urgency involved. Those 12 cases were taken from a total of around 311 prior approval cases. The same system will be put in place to deal with intrusive authorisations for police and customs activities under these provisions. I think that that should go some way to providing evidence that the system will not be abused.

The amendment would also impose a requirement on Secretary of State authorisations. They would not take effect until a surveillance commissioner had approved the grant of authorisation and written notice of the commissioner's decision had been given. We do not believe that that would be appropriate; rather, this is a skilful way employed by the noble Lord to raise again the issue of judicial warranting which we discussed during earlier debates in Committee. The surveillance commissioners have no locus in the activities of the security and intelligence agencies. We made our position clear on judicial involvement in the issue of warrants by the Secretary of State during discussions on Part I of the Bill.

Authorisation for intrusive surveillance by the security and intelligence agencies or the Ministry of Defence will occur in extremely sensitive cases. We believe that it is a key part of the line of accountability from the agencies and department to the Secretary of State. The involvement by the executive has historically reflected the highest levels of scrutiny. Any alternative means of authorising such operations would need to show that they would lead to an improvement on a system which has proved to be remarkably effective over many years. The place for judicial influence in this process is in the oversight role provided by the Intelligence and Security Service Commissioners.

I shall turn now to Amendment No. 125. The amendment allows the surveillance commissioners to add conditions to grants of approval. It should be remembered that the role of the surveillance commissioner is one of review. It is his function to review every authorisation for intrusive surveillance to satisfy himself that the decision was reasonable and that it met the criteria; that is, that it concerned serious crime; that it was proportionate; and that the action it sought to achieve could not be achieved by other means.

If the surveillance commissioner agrees that the decision was reasonably made, he will approve it. If he does not believe that the decision was reasonable, he will cancel or quash the authorisation. We do not believe that it is his role to second-guess the authorising officer or to impose extra conditions on the authorisation. Authorisations are fundamentally operational decisions, best left to those most qualified to take them. It will be the authorising officer who, at the end of the day, is accountable for that decision and will have to justify it, if necessary, in court. However, nothing can prevent the authorising officer himself from attaching conditions or limitations on who, how, when, where or what kind of surveillance may be undertaken.

Amendments Nos. 127 and 132 would require the surveillance commissioner to give prior approval to Security Service intrusive surveillance authorisations which were granted on serious crime grounds. We believe that they are moving in a similar direction to the amendments that we have just discussed. For the same reasons, we do not believe that the amendments would he appropriate. They would represent a movement towards judicial warranting, with which we do riot agree. Furthermore, they would undermine, to a certain extent, a central element in the accountability of the Security Service to the Home Secretary.

We cannot accept Amendments Nos. 128 to 131. It is worth bearing in mind that all the surveillance commissioners are serving or former High Court judges. This should continue to be the case for all those commissioners involved in intrusive surveillance authorisations. There are clear statutory powers for the commissioners to quash and cancel authorisations. Furthermore, there are clear powers for them to order the destruction of records when they consider that to be appropriate. We are referring to senior judicial figures; the issues involved may well be complex; we believe that it is right to leave the discretion in their hands.

Finally, Amendments Nos. 135 and 136 would reduce the length of time a warrant can be granted or renewed for intrusive surveillance carried out by the intelligence services from six to three months. The investigations carried out by these agencies differ from those carried out by the police and customs. They tend to be for long-term investigations involving national security and the economic well-being of the UK. We believe that a six-month warranting system for such operations is right and appropriate. The difference is reflected in the differing lengths of authorisations for interference with property under the Intelligence Services Act and the Police Act. Those differences should remain.

The noble Lord was right to bring forward these amendments in order to test the Government on whether what has been put into the Bill so far is absolutely right. We believe that the new regime sits well alongside the existing set-up in the Police Act and the Intelligence Services Act, and I hope to some extent that I have reassured the noble Lord.

Lord Hylton

While we are still debating Clause 30, I understand that the senior authorising officers will be taking operational decisions, and that in nearly all cases they are individuals who are heads of their force or branch. However, in subsection (5)(1) at the bottom of page 33, the designated Customs officer can be "any customs officer" designated by the commissioners. How many Customs officers would be expected to be designated? Also, will he define more closely the phrase, "economic well-being of the United Kingdom". I suspect that I ought to know the answer. The noble Lord has perhaps defined it several times already. If that is the case, I apologise to him.

Lord Bach

If the noble Lord will forgive me, 1 do not intend to return to that issue, particularly when we have a large number of amendments to get through. If he will be kind enough to look in Hansard at some of our early debates in Committee, he will see that there was a debate on what that phrase means. I believe it was on the first day of Committee.

So far as concerns Customs, the noble Lord is right. Authorisation for intrusive surveillance is by a chief officer, but also, except in urgent cases—and this is very important—with the prior approval of the surveillance commissioner. Only in urgent cases can that chief officer give authority. In most cases it will be done only with the prior approval of the surveillance commissioner.

The noble Lord asked whether any designated Customs officer will do. The answer is no: the code of practice, which, I am happy to say, is due to be published in draft form before the Report stage, will limit this provision to the chief investigation officer and deputy chief investigation officer before authorisation. No one else will be allowed to do it.

Lord McNally

I commend to the noble Lord, Lord Hylton, a reading of the Bassam definition of "economic well-being". I am sure that it has already reached most of the economic textbooks.

I make no apologies for putting forward these amendments. I think that, sometimes, Parliament is cowed at the thought that the security services, the "spooks", are involved, and we are all supposed to suspend judgment. While I fully respect the work that our security services do, it is important that Parliament continues to scrutinise the powers that we grant them and how they use those powers. That was the spirit in which the amendment was moved and I shall read the Minister's reply with care. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 30, as amended, agreed to.

Clause 31 [Rules for grant of authorizations]:

Lord Bach moved Amendment No. 124A: Page 34. line 36, leave out ("or of the City of London police force") and insert (", of the City of London police force or of a police force maintained under or by virtue of section 1 of the Police (Scotland) Act 1967").

The noble Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 31, as amended, agreed to.

Clause 32 [Grant of authorisations in the senior officer's absence]:

Lord Bach moved Amendments Nos. 124B and 124C: Page 36, line 7, at end insert— ("( ) a person is entitled to act for the chief constable of a police force maintained under or by virtue of section 1 of the Police (Scotland) Act 1967 if he holds the rank of assistant chief constable in that force;"). Page 36, line 45, at end insert ("or section 5(4) of the Police (Scotland) Act 1967").

The noble Lord said: I have already spoken to these amendments. I beg to move them en bloc.

On Question, amendments agreed to.

Clause 32, as amended, agreed to.

Clause 33 [Notification of authorisations for intrusive surveillance]:

[Amendment No. 125 not moved.]

6.15 p.m.

Lord Lucas moved Amendment No. 126:

Page 37, line 32, leave out subsection (6).

The noble Lord said: I beg to move.

Lord Bach

It is important that public authorities have a statutory basis for carrying out covert activities as soon as possible and that provisions are in force before the Human Rights Act is implemented on 2nd October this year. This is necessary to safeguard the use of these valuable techniques by law enforcement and other agencies. The police and Customs will not be able to use the provisions relating to intrusive surveillance until an order has been made detailing the information to be contained in notifications to surveillance commissioners.

Such orders will be subject to parliamentary approval. However, in order to allow such an order and rules to be made by the Secretary of State in the absence of Parliament between the period when the Bill receives Royal Assent and Parliament reconvenes after the Summer Recess, the initial order has been made subject to the 40-day rule. This means that the initial order, and only the initial order, can be made without Parliament's prior approval. It would, however, need to be approved by Parliament within 40 days of being signed. The fact that the order in question will still require parliamentary approval is an important consideration.

Most important of all is the fact that the Committee on Delegated Powers and Deregulation has considered this provision. Its report considers both the provisions and the parliamentary procedure provided for them to be appropriate. We place much store by that, as I am sure will the committee. We have tabled some amendments in response to its provisional recommendations. I hope that the noble Lord will withdraw his amendment.

Lord Lucas

I am grateful for that explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 33 agreed to.

Clause 34 [Approval required for authorisations to take effect]:

[Amendments Nos. 127 and 127ZA not moved.]

Lord Bach moved Amendment No. 127A: Page 39, line 28, at end insert ("or (iii) a chief constable of a police force maintained under or by virtue of section 1 of the Police (Scotland) Act 1967,").

The noble Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 34, as amended, agreed to.

Clause 35 [Quashing of police and customs authorisations etc.]:

[Amendments Nos. 128 to 131 not moved.]

Clause 35 agreed to.

Clauses 36 to 38 agreed to.

Clause 39 [Secretary of State authorisations]:

[Amendment No. 132 not moved.]

Clause 39 agreed to.

Clause 40 agreed to.

Clause 41 [General rules about grant, renewal and duration]:

Lord McNally moved Amendment No. 133: Page 44, line 25, leave out ("twelve") and insert ("three").

The noble Lord said: This and Amendment No. 134 are wing-clipping and probing amendments. Twelve months seems rather a long time for powers to remain in existence. I beg to move.

Lord Bach

To reduce the length of an authorisation for the use of a covert human intelligence source from 12 to three months is unnecessary and would place great demands on public authorities that use sources in their everyday work.

The use of a covert source is a long-term activity that needs to be authorised for a longer, rather than a shorter, period of time. Informants and agents can take a long time to build up a relationship or to elicit a particular piece of information. We think that 12 months is about right as a sensible gap between authorisations, and there are extra safeguards in the Bill in recognition of this relatively lengthy authorisation period.

The Bill requires that there should be at least two officers with responsibility for looking after each source. One should be responsible for the day-to-day care and for the security and welfare of the source. A second will have responsibility for a more general oversight of the use of that source. A person within the authority will have responsibility for maintaining a record of the use made of the source, and the information to be contained in those records will be the subject of regulations by the Secretary of State. Those extra safeguards are necessary because of the 12-month authorisation period.

Because authorisations last longer, Clause 41(6) directs an authorising officer to particular matters for consideration at the time of renewal. But, as can be seen from the detail of these extra requirements, they are specifically aimed at issues that may arise in respect of the use of a covert source. The idea that these safeguards might also work in respect of surveillance is misguided. Also, the shorter period for surveillance authorisations makes such extra safeguards slightly less necessary. We do not believe that the amendment could work in practice.

Viscount Astor

We on this side of the Committee feel that three months would be far too short. It would involve excessive paperwork and excessive bureaucracy for the authority concerned.

There may be a case for a slightly shorter period; the noble Lord, Lord McNally, might consider six months. However, in the light of what the Minister has said it is clear that it is quite a long-term matter, and to have to come back every three months would be an excessive burden.

Lord McNally

Against such an array of judgment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 134 not moved.]

Clause 41 agreed to.

Clause 42 [Special rules for intelligence services authorizations]:

[Amendments Nos.I35 and 136 not moved.]

Clause 42 agreed to.

Clause 43 [Cancellation of authorizations]:

Lord Bach moved Amendment No. 136A: Page 47, line 22, at end insert ("or (iii) a chief constable of a police force maintained under or by virtue of section 1 of the Police (Scotland) Act 1967,").

On Question, amendment agreed to.

Clause 43, as amended, agreed to.

Lord Bach moved Amendment No. 136B:

After Clause 43, insert the following new clause—