§ 4.11 p.m.
§ Report received.
Lord McIntosh of Haringey moved Amendment No. 1.
Before Clause 1, insert the following new clause—
§ GENERAL PRINCIPLES
§ (". The Security Service, in exercising its functions under or in consequence of this Act, shall have regard to the following general principles—
- (a) the rule of law is paramount;
- (b) the means of investigation must be proportionate to the gravity of the threat;
- (c) the more intrusive the technique, the higher the authority should be to authorise its use; and
- (d) except in emergencies, less intrusive techniques must be preferred to more intrusive ones.").
§ The noble Lord said: My Lords, in speaking to this Bill, both at Second Reading and in Committee, I emphasised the support of the Opposition for the general principle behind the Prime Minister's statement at the Conservative Party Conference, that he sought to put on a more established basis, a legal basis, the role of the law enforcement agencies, including the police and the Security Service.
§ This Bill is the first part of that programme of objectives which the Prime Minister set out. As I said at Committee stage, it is in some ways the most difficult part, not necessarily in drafting terms, but because this is the part which extends the responsibilities of the Security Service, although we have not yet seen the other parts of the Prime Minister's package which are to provide a statutory basis for law enforcement agencies. Therefore, because this part comes before Parliament earlier than the rest of the package I thought it appropriate, as has happened in other legislation in this Session, to seek to add to the Bill a statement of general principle underlying this new role for the Security Service. I have taken that statement of general principle from Canada.
Noble Lords who follows these things will be aware that in the 1970s there was a series of scandals about the unauthorised activities of the Royal Canadian Mounted Police. An inquiry was set up under Justice McDonald, which led to a Royal Commission in 1981, which
produced a report called Freedom and Security under the Law. I believe, having read unfortunately only extracts from that report, it is a very valuable statement of the principles on which the work of the police and the security services in a free society should operate. In the Royal Commission's report the general principles are set out in this form: the Security Service,
shall have regard to the following general principles—
§ These are Canadian words and they may not fit immaculately into English legislative speak. I believe that they will have a resonance to your Lordships, and that you will feel, reading them, that they express the basic principles which we all feel about the role of law enforcement agencies. I believe that they follow and point up the concerns which the Prime Minister expressed in his speech, and which underlie the purposes of this particular piece of legislation.
§ As a result of the Royal Commission, Canada set up the Canadian Security Intelligence Service, which took over the functions of the Royal Canadian Mounted Police for internal security. It is headed by a director-general, but it also has an inspector-general who has the responsibility of reporting to Parliament and making judgments about the propriety of the activities of the Canadian Security Intelligence Service. Under the legislation which governs the work of that service, an application for a warrant, of a kind we are considering in Clause 2 of this Bill, has to be approved by the solicitor-general and has to be made to a judge in writing. We shall come to that issue when we consider later amendments.
§ I believe the Canadians have something to teach us in this matter. Having had difficulties in the 1970s, they have shown a responsible approach to the whole issue of the statutory basis of the work of law enforcement agencies. As I understand it, their reforms have been successful; and they have been successful, at least in part, because they are based on the general principles set out in Amendment No. 1.
§ The House has agreed, as recently as in its consideration of the Family Law Bill, that a statement of general principle can be, under certain circumstances, a valued addition to legislation. I believe that this reflects what the Prime Minister intended from this legislative programme. I commend the amendment to the House.
§ 4.15 p.m.
§ Lord Renton
My Lords, I do not doubt the good intentions of the noble Lord, Lord McIntosh, in moving this amendment, but frankly I do not think it is suitable for legislation. It states opinions and does not enact law with any precision which would be considered binding on those who have to observe the law and, indeed, upon 1027 the courts. Different judges would take different views as to what should be the application of some of these phrases.
Perhaps I may go through them. First, the amendment says:The Security Service, in exercising its functions under or in consequence of this Act, shall have regard to the following general principles—That is merely a statement of opinion of the obvious. It is merely a repetition of a well-known constitutional principle, but it does not get us anywhere in relation to this Bill. Secondly,
- (a) the vile of law is paramount".(b) the means of investigation must be proportionate to the gravity of the threat".That would be good advice to those who will be responsible for administering the law when this Bill is passed, but it is a matter of opinion in every case. If this point were to be brought before juries, juries' decisions would vary enormously on the same set of facts.
Thirdly, there is another statement of opinion:(c) the more intrusive the technique, the higher the authority should be to authorise its use".There is no listing of the techniques, but I am glad there is not because I do not think we should go into that sort of detail. The amendment uses the words,the higher the authority should be to authorise its use".I do not think there will be a multiplicity of authorities authorising use here. It just will not be so. Finally, it says:(d) except in emergencies, less intrusive techniques must be preferred to more intrusive ones".There again, it is good guidance to give to the Security Service in the years to come, but to try to tie them down in law to a statement of this kind does not seem to me to be a way to legislate. I hope the Government and your Lordships will not accept this amendment.
§ Lord Rodgers of Quarry Bank
My Lords, when I first saw the amendment on the Marshalled List I was not at all clear as to its purpose. However, I listened carefully to what the noble Lord, Lord McIntosh, said when moving it, and to the remarks made by the noble Lord, Lord Renton. On reflection, I believe that there is a great deal to be said for the proposed new clause. I certainly understand the reason why the noble Lord Lord McIntosh, brought it forward. I believe that I was the only Member of your Lordships' House who, in a debate on the humble Address, expressed some hesitations about the Bill which was then foreshadowed. I expressed those hesitations again on Second Reading and, indeed, in Committee.
I recognise what the noble Lord, Lord McIntosh, said—the Minister has reminded us of it from time to time, quite rightly—namely, that the Bill has in its purpose all-party support. However, the longer we have discussed it the more concerned I have become that, in pursuing a good cause—by which cause I mean dealing with organised crime—we may be making constitutional changes which, although not apparently significant 1028 today, may turn out to be the thin end of the wedge over a period of time in terms of many of the freedoms that we take for granted today.
I understand the points contained in the proposed new clause. They are controversial only to a very minor degree. They might, therefore, seem too obvious to require a particular statement here. However, for the very reason that I mentioned, if there is no place for such a clause in the Bill and no endorsement of those sentiments, the difficulties that we have in amending the legislation will stand on record as a failure of your Lordships' House.
Although we shall return to some of these issues later, I remind your Lordships that we have not found it possible to define organised crime in the way foreshadowed and anticipated by the remarks made by the Prime Minister last autumn. We have found it difficult to find a way to deal with an adequate complaints procedure, although we shall return to the issue later. But, perhaps the most important question of all—and, again, we shall discuss it soon—involves the contents of Clause 2 which the noble Lord, Lord McIntosh, ensured were debated in Committee.
Bearing in mind the difficulties that we have experienced thus far in making progress with the changes which many noble Lords believe are desirable, I believe that there is much merit in the proposed new clause. Whatever the course the noble Lord, Lord McIntosh, chooses to take as regards whether or not to press the matter to a Division, I hope that the Minister will find it possible to endorse the principles enshrined in the proposed new clause.
§ Baroness Park of Monmouth
My Lords, I hesitate to intervene, especially as I have not, unfortunately, recently seen the text of the original Act on the functions of the Security Service. However, although I entirely respect the motives of the noble Lord, Lord McIntosh, in putting forward such views, I should be extremely surprised if the Security Service does not in fact already operate in the way suggested. Therefore, the provision seems a little unnecessary. Indeed, no sensible intelligence officer would do something complicated and dangerous if he could achieve the same admirable result by doing something simple and lawful.
As I believe my noble friend Lord Renton said, there is, in practice, only one authority—namely, the Secretary of State, or so it has always been—as regards the granting of warrants and all those acts which have to be approved because they raise problems of danger and law. It is slightly insulting to the service—I do not believe that it is intended to be so—to suggest that it does not operate in that way. In the last legislation on the service, I assume that it was made pretty watertight that some matters had to be referred upwards and others had not.
There is, of course, a long history of case law in both services as regards what one refers on and when one should do so. But I repeat: no sensible intelligence officer would do something more intrusive if he could do something less intrusive. The Canadian case is not really relevant; indeed, there were many other problems 1029 involved. It happened long ago and it is too difficult to go into the details. There was a need for tightening up quite a lot of screws in that case. However, I do not believe that that is necessary as regards the legislation now before us. I should regret seeing such a provision becoming, perhaps, a rod with which to beat the service at a future stage in some difficult legislative battle.
I feel real anxiety about the lack of certainty and clarity which still exists about what will happen with the authority and with the police. I look forward to those points becoming much clearer. However, although the proposed new clause is entirely honourable, I believe it to be unnecessary.
§ The Minister of State, Home Office (Baroness Blatch)
My Lords, I do not believe that there is a very real difference of opinion here. Certainly that does not appear to be the case from the remarks made by my noble friends Lady Park and Lord Renton. The noble Lord's amendment advances a series of principles which should guide the work of the Security Service under its new function. I am happy to be able to say that the work of the Security Service is already guided by those principles through a combination of existing legislative provisions and internal mechanisms. Indeed, three of the four principles in the amendment are set out in the second edition of the Security Service booklet, which was published earlier this year, as fundamental principles governing the service's work. I hope, therefore, that your Lordships will agree that the amendment is unnecessary.
First, the amendment restates the primacy of the rule of law. In the course of our discussions on the Bill, I have already given the assurance that individual members of the Security Service are subject to the law—both criminal and civil—but I am happy to restate that assurance now. Of course the rule of law is paramount, that is absolutely clear. This is certainly one of the fundamental principles to which the Security Service adheres.
Secondly, the amendment will impose a test of proportionality so that the most intrusive techniques can be used only when the threat is suitably serious. As a related requirement, less intrusive techniques should be preferred to more serious ones. Underpinning both those principles is the desire to ensure that the most intrusive investigative techniques are not used inappropriately or unnecessarily. Again, that is a fundamental principle for the Security Service and one which the Government fully endorse. Hence, the legislation governing the most intrusive techniques already makes specific provision to that effect.
Section 2(2) of the Interception of Communications Act 1985 prevents the Secretary of State from issuing warrants authorising interception unless,he considers that the warrant is necessaryfor the stated statutory purposes which include,preventing or detecting serious crime".In defining the word "necessary", the Act goes on to say that the Secretary of State must consider,whether the information which it is considered necessary to acquire could reasonably he acquired by other means".1030 There is a similar provision in the Intelligence Service Act 1994, governing the issue of warrants authorising the entry on, or interference with, property. Section 5(2) requires the Secretary of State to be satisfied that the action is likely to be of substantial value in assisting the Security Service to pursue its statutory functions and that the objective of the action,cannot reasonably be achieved by other means".In other words, for the two most intrusive means of investigation there is already a statutory requirement for them to be used only as a last resort.
The fact that that "last resort" test requires the Secretary of State to be satisfied that other, less intrusive, techniques could not be used, demonstrates the emphasis which is placed in the legislation on restricting the authorisation of the most intrusive techniques to a suitably high authority. For both types of warrant, the personal authorisation of the Secretary of State is required. In both cases, the Secretary of State's exercise of his power to issue warrants is overseen by a senior member of the judiciary in the form of the relevant commissioner. Once again, I would suggest that the existing legislation meets the concern underpinning the amendment's wish to see a higher authority authorising more intrusive techniques.
For general methods of investigation which do not require the issue of an interception or property warrant, the actions of the Security Service are under the control of the Director-General of the Security Service. I do not believe that it would be helpful to the service's operational effectiveness if we were to attempt to specify how the Director-General should apply or delegate his authority in relation to general methods of investigation. The principal is very properly covered in the internal mechanisms controlling the service's day-to-day work. The clear exception to this is where techniques are involved which require serious intrusion into the privacy of members of the public. On those occasions the legislation is clear and the safeguards are robust—the personal authorisation of the Secretary of State is required, with oversight from a commissioner. In conclusion, these principles are extremely important—a fact which has been publicly recognised by the Security Service and endorsed by the Government. Where it is sensible to translate those principles into practical legislative safeguards it has already been done. That is why principles (b), (c) and (d) of this amendment are already addressed in the existing legislation. Principle (a), which reminds us that,the rule of law is paramount".is not specifically addressed in the legislation because, as my noble friend Lord Renton said, it should not be necessary to restate that the rule of law is paramount. There is nothing which could detract from such a clear and fundamental principle. I hope therefore that the amendment will not be pressed.
§ 4.30 p.m.
§ Lord McIntosh of Haringey
My Lords, I am grateful to the noble Lord, Lord Rodgers, for his support for this amendment. However, the case for the amendment has been most effectively made by those 1031 noble Lords who have spoken against it. They combined the claim that it is unnecessary with the claim that it might be too restrictive on the members of the Security Service. That confirms all of my fears. The noble Lord, Lord Renton, the noble Baroness, Lady Park, and the Minister all objected to the idea of a statement of general principles in this form. I remind the House that just this afternoon we shall consider Commons amendments to the Family Law Bill. I believe it was the noble Baroness, Lady Young—I am sure she had the support of all noble Lords opposite—who inserted in the Family Law Bill a clause of general principles that,The court and any person, in exercising functions under or in consequence of Parts II and III, shall have regard to the following general principles—There are further principles as regards practical steps to save a marriage and as regards dealing with marriages which have irretrievably broken down. So the House has only recently inserted, in a kind of preamble to a Bill, a statement of general principle which is certainly as wide-ranging and as unexceptionable as the repeated declaration of the primacy of the rule of law.
- (a) that the institution of marriage is to be supported".
§ Baroness Blatch
My Lords, I believe that the comparison the noble Lord makes is almost an odious one. As regards recognising the institution of marriage, that can be a subjective judgment on the part of many people. However, to honour the rule of law as paramount should not be a subjective judgment. It is an absolute principle that we would all expect to see honoured by whomever it concerned.
§ Lord Renton
My Lords, I am a most enthusiastic supporter of general principles rather than going into too much hypothetical detail. But a general principle must be one which is enforceable in law and not merely a statement of opinion or merely a guide to good conduct.
§ Lord McIntosh of Haringey
My Lords, are we saying that support for the institution of marriage is enforceable in law? Many lawyers will make a good living for many years to come as a result of different interpretations of what is meant by general support for the institution of marriage.
§ Baroness Park of Monmouth
My Lords, that is exactly the point that I made about intrusive techniques.
§ Baroness Park of Monmouth
My Lords, my concern was that if the phrase about intrusive techniques in the noble Lord's amendment were to stand, it would be exploited by lawyers in exactly the way that the noble Lord suggested. That is my point; not that I think the service would be vulnerable but that there would be considerable efforts to exploit the matter in the courts.
§ Lord McIntosh of Haringey
My Lords, that is an interesting point. The Minister subsequently explained that principles (b), (c) and (d) are already contained— 1032 either in exactly those words, or in similar words—in instructions to the Security Service. I am not quite sure of her words, but I believe she referred to some document which describes how the Security Service should operate. The noble Baroness is opposing the idea that it should appear in primary legislation. I remind her that this Bill contains—in primary legislation—detailed prescription for the supervision of the work of the Security Service in support of police forces and detailed prescription for the way in which warrants will operate. Is it not entirely appropriate that we should at the same time bring out into the open and into legislation the basis on which these changes are to be made? I believe that what we are saying in this amendment is entirely consistent with the objectives of the Prime Minister in his admirable defence of a statutory basis for law enforcement agencies. I am not convinced by what the Minister has said. I am certainly not convinced by the arguments made by those on her Benches. I wish to seek the opinion of the House on this amendment.
§ 4.36 p.m.
§ On Question, Whether the said amendment (No. 1) shall be agreed to?
§ Their Lordships divided: Contents, 73; Not-Contents, 122.1033
|Division No. 1|
|Addington, L.||Monson, L.|
|Ashley of Stoke, L.||Morris of Castle Morris, L.|
|Avebury, L.||Nicol, B.|
|Beaumont of Whitley, L.|
|Blackstone, B.||Ogmore, L.|
|Broadbridge, L.||Peston, L.|
|Bruce of Donington, L.||Plant of Highfield, L.|
|Callaghan of Cardiff, L.||Prys-Davies, L.|
|Carmichael of Kelvingrove, L.||Rea, L.|
|Carter, L.||Richard, L.|
|Cledwyn of Penrhos, L.||Robson of Kiddington, B.|
|Cocks of Hartcliffe, L.||Rodgers of Quarry Bank, L.|
|David, B.||Russell, E.|
|Dean of Beswick, L.||Sainsbury, L.|
|Desai, L.||Seear, B.|
|Dormand of Easington, L.||Shepherd, L.|
|Dubs, L.||Simon of Glaisdale, L.|
|Fitt, L.||Stallard, L.|
|Gladwin of Clee, L.||Stoddart of Swindon, L.|
|Graham of Edmonton, L. [Teller.]||Strabolgi, L.|
|Grey, E.||Thomas of Walliswood, B.|
|Hamwee, B.||Thomson of Monifieth, L.|
|Harris of Greenwich, L.||Thurso, V.|
|Haskel, L. [Teller.]||Tordoff, L.|
|Holme of Cheltenham, L.||Turner of Camden, B.|
|Howie of Troon, L.|
|Hylton, L.||Wallace of Coslany, L.|
|Jeger, B.||Wallace of Saltaire, L.|
|Jenkins of Hillhead, L.||Warnock, B.|
|Jenkins of Putney, L.||Whaddon, L.|
|Kilbracken, L.||White, B.|
|Listowel, E.||Wigoder, L.|
|McIntosh of Haringey, L.||Williams of Crosby, B.|
|Milner of Leeds, L.||Williams of Elvel, L.|
|Molloy, L.||Williams of Mostyn, L.|
|Monkswell, L.||Winston, L.|
|Aberdare, L.||Inglewood, L.|
|Abinger, L.||Kenyon, L.|
|Addison, V.||Knights, L.|
|Ailsa, M.||Knollys, V.|
|Aldington, L.||Lauderdale, E.|
|Alexander of Tunis, E.||Lindsay, E.|
|Allenby of Megiddo, V.||Lindsey and Abingdon, E.|
|Ashbourne, L.||Liverpool, E.|
|Astor of Hever, L.||Lucas, L.|
|Barber of Tewkesbury, L.||Lucas of Chilworth, L.|
|Belhaven and Stenton, L.||Lyell, L.|
|Blaker, L.||McConnell, L.|
|Blatch, B.||Mackay of Ardbrecknish, L.|
|Boardman, L.||Mackay of Clashfern, L. [Lord Chancellor.]|
|Brabazon of Tara, L.||Mackay of Drumadoon, L.|
|Braine of Wheatley, L.||Macleod of Borve, B.|
|Brentford, V.||Marlesford, L.|
|Brookeborough, V.||Massereene and Ferrard, V.|
|Brougham and Vaux, L.||Mersey, V.|
|Bumham, L.||Miller of Hendon, B.|
|Butterworth, L.||Milverton, L.|
|Cadman, L.||Monk Bretton, L.|
|Caldecote, V.||Montagu of Beaulieu, L.|
|Campbell of Alloway, L.||Montgomery of Alamein, V.|
|Campbell of Cray, L.||Mottistone, L.|
|Carnegy of Lour, B.||Mountevans, L.|
|Chalker of Wallasey, B.||Mountgarret, V.|
|Clanwilliam, E.||Mowbray and Stourton, L.|
|Clark of Kempston, L.||Munster, E.|
|Courtown, E.||Murton of Lindisfarne, L.|
|Cranborne, V. [Lord Privy Seal]||Newall, L.|
|Cuckney, L.||Norrie, L.|
|Cumberlege, B.||Northbourne, L.|
|De Freyne, L.||Northesk, E.|
|De L'Isle, V.||O'Cathain, B.|
|Dean of Harptree, L.||Oxfuird, V.|
|Denham, L.||Park of Monmouth, B.|
|Donegall, M.||Pearson of Rannoch, L.|
|Downshire, M.||Pike, B.|
|Ellenborough, L.||Quinton, L.|
|Elton, L.||Rankeillour, L.|
|Ferrers, E.||Rathcavan, L.|
|Flather, B.||Rawlings, B.|
|Gainsborough, E.||Renton, L.|
|Goschen, V.||Renwick, L.|
|Gray of Contin, L.||Romney, E.|
|Griffiths of Fforestfach, L.||Saint Albans, D.|
|Hailsham of Saint Marylebone, L||Seccombe, B.|
|Halsbury, E.||Shaw of Northstead, L.|
|Harding of Petherton, L.||Strange, B.|
|Harmsworth, L.||Strathdyde, L. [Teller.]|
|Harrowby, E.||Sudeley, L.|
|Hayhoe, L.||Swansea, L.|
|Henley, L.||Swinfen, L.|
|Holderness, L.||Tenby, V.|
|HolmPatrick, L.||Teviot, L.|
|Hooper, B.||Thomas of Gwydir, L.|
|Howe, E.||Trumpington, B. [Teller.]|
|Ilchester, E.||Ullswater, V.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 4.45 p.m.
§ Clause 1 [Functions of Security Service]:
§ Lord Avebury
My Lords, perhaps before we take Amendment No. 2 I could raise a matter which arises out of the statement made by the Leader of the House in answer to questions.
§ Lord Avebury
My Lords, perhaps the noble Baroness will bear with me for a second. The noble Viscount the Leader of the House made a statement that documents concerning the Asylum and Immigration Bill had been placed in the Library of your Lordships' House at half-past eleven this morning. I am afraid that inadvertently he misled your Lordships. After that, I went immediately to the Library to ask for the documents so that I could begin considering the amendments. Complaints had already been made, as the noble Baroness may have noticed, about the shortness of time available within which those who are involved with the Bill had to consider matters. The time available is even shorter than anyone thought because the documents were not there.
§ Baroness Blatch
Order! My Lords, I suggest that the noble Lord goes to see the Leader of the House and the usual channels and does not use this Bill for this purpose.
§ Lord Harris of Greenwich
My Lords, with regard to the usual channels, the fact is that inadvertently the Leader of the House has misled the House by saying that documents were in the Library when they were not. The House has the right to hear a statement from Ministers as to exactly what is going on, given that the House has been misled—inadvertently, I repeat.
§ Baroness Blatch
My Lords, it would be at least courteous for noble Lords to see the Leader of the House to press their point. They can leave him to decide how he will deal with the point, rather than using this Bill as an opportunity to raise a point of order. As the noble Lord knows, I am in no position to answer it because it is not my subject. At this stage, it is a matter for the Leader of the House.
§ Lord McIntosh of Haringey
moved Amendment No. 2:Page 1, line 23, at end insert—("(4) After sub-paragraph 7(3) of Schedule 1 to the Security Service Act 1989, there shall be added—(3A) The Tribunal shall submit to the Intelligence and Security Committee established under section 10 of the Intelligence Services Act 1994 details of every determination made by it in relation to any function carried out by the Service under section 1(4) of this Act, its reasons for that determination and the relevant background papers.".").The noble Lord said: My Lords, the amendment relates to the system of control of the Security Service which is set up under the Intelligence Services Act 1994. I begin by expressing my gratitude to the Minister for sending me details, some of which I had not had, of the tribunal system and the work of the Intelligence and Security Committee.
In the amendment, we propose not that there should be a general reporting of all cases undertaken by the Security Service in performing the functions provided for in the Act, but that the tribunal which deals with only a small proportion of the cases which the Security 1035 Service undertakes, should have the responsibility of submitting details of determinations made to the Intelligence and Security Committee. I do not know how many determinations are made by the tribunal in the course of a year, but the proposal will not be an enormous burden.
On the other hand, it is important that the Intelligence and Security Committee should have the raw material on which it is to base its judgments which must form the basis of its annual report to the Prime Minister. If it is to consider the working of the two services, it must know what complaints have been made and how they have been dealt with by the tribunal. I acknowledge that most complaints made to the current Security Service Tribunal appear to be unjustified. The annual reports of the Security Service Commissioner confirm that. So much the better and so much the more reason why the Intelligence and Security Committee should have the basis on which it can say with confidence to the Prime Minister and ultimately to Parliament that the vast majority of complaints are unjustified.
However, even if they are not justified and are not upheld by the tribunal, they may not all be misconceived. Some complaints, even if they are not upheld individually, could illustrate more general problems in the functions and working of the services. The committee ought to have the information in order to fulfil its own functions adequately. I say that with some trepidation in the presence of the noble Lord, Lord Blaker, but I believe that the amendment is—as it is intended to be—helpful to the work of his committee and helpful to the working of the 1994 Act. It deserves the serious consideration of the House. I beg to move.
§ Baroness Blatch
My Lords, I must confess that I am somewhat puzzled by the purpose behind this amendment. It seems to be confusing the purpose of the independent Security Service Tribunal, which exists to investigate complaints against members of the Security Service, and the independent Intelligence and Security Committee—the ISC as it is known—which exists to provide a measure of parliamentary scrutiny of the work of all the intelligence agencies.
We discussed the issue of complaints against the Security Service at some length during the previous stages of the Bill and will no doubt do so again when we come to discuss the new clause that has been tabled by the noble Lords, Lord Harris and Lord Rodgers. I am sure therefore that the House is already somewhat familiar with the mechanisms that exist for dealing with complaints that are made against the Security Service. I do not want to go over the same ground again, but let me just remind the House that the Security Service Tribunal, which was set up for this very purpose, consists of three senior members of the legal profession, who are independent of the Security Service.
If the tribunal upholds a complaint, it can order the Security Service to discontinue an inquiry, destroy all records relating to that inquiry and order that redress be given to the complainant. Not only that, but the tribunal is obliged to make a report on the matter to both the Security Service Commissioner and the Secretary of 1036 State so that, should the complaint be symptomatic of a wider problem in the service, the necessary remedial action can be taken.
On the other hand, if the complaint is not upheld, the complainant is told only that. There is good reason why the tribunal does not give reasons for its decisions. As things stand, the unsuccessful complainant does not know if he has been the subject of a legitimate inquiry by the Security Service or if the service has taken no interest in him. It would be most unfortunate if potential targets of the service were able to use the complaints procedure to confirm, or otherwise, that the service had taken an interest in them.
That is the role of the tribunal. The Intelligence and Security Committee is a committee of senior parliamentarians, including my noble friend Lord Blaker, which has the remit of examining the "expenditure, administration and policy" of the intelligence agencies. It was certainly never envisaged that the committee should have any role to play in the complaints process and I must say that I am at a loss to know what the ISC would be expected to do with all the information that this amendment envisages it would receive from the tribunal, including, incidentally, information on all the complaints that were not upheld. It also seems odd that the tribunal should be required to give reasons for its decision to the ISC when, for the very good reason that I have outlined, it does not give them to complainants.
The Security Service Tribunal and the ISC are two important—but distinct—elements of the accountability arrangements that govern the work of the Security Service. They both have important tasks to perform and both do so, if I may express an opinion, efficiently and effectively. However, it is important to realise that these functions are separate and it would be unwise to confuse the two. I hope, therefore, that the noble Lord, Lord McIntosh, is reassured and will feel able to withdraw the amendment.
§ Lord McIntosh of Haringey
My Lords, I did not intend to press the amendment, so the second part of the Minister's hopes will indeed be fulfilled. However, I am not at all reassured by her remarks. The point about the tribunal is that its proceedings are entirely secretive—very much in contrast to the work of the Police Complaints Authority.
I should not mind quite so much if the tribunal were secretive where issues of national security are concerned; but the tribunal is secretive in all cases. As the Minister said, complainants or persons under investigation are not informed about what is going on. Again, I quite understand if that happens for reasons of national security. But we are now talking about functions in support of the activities of police forces. We are talking about the investigation of serious crime. We are talking not about the generality of the work of the security services but about their work in support of the police. In those circumstances, the analogy for the complaints procedure ought not to be the secretive complaints procedure for the Security Service, but the more open complaints procedure of the police.
1037 Perhaps I have the protocol wrong in suggesting that Parliament, through the Intelligence and Security Committee, should be the point at which these matters become available to outsiders—which those senior parliamentarians are—so that they may comment upon them. No doubt the amendment is defective in that way. Most amendments are. However, the principle behind it, that complaints procedures for the functions under the Bill should be more comparable to those of the Police Complaints Authority, is still valid. It will be dealt with in later amendments. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McIntosh of Haringey moved Amendment No. 3:
After Clause 1, insert the following new clause—
§ ANNUAL REPORT OF INTELLIGENCE AND SECURITY COMMITTEE
(". At the end of section 10 of the Intelligence Services Act 1994, there shall be added—
(8) In its annual report the Committee shall report separately on the activities of the Security Service under section 1(4) of the Security Service Act 1989.".").
§ The noble Lord said: My Lords, again, this amendment relates to the work of the Intelligence and Security Committee. It makes a quite modest demand which I shall introduce very briefly; namely, when the committee produces its annual report it should give separate consideration to the activities of the Security Service which are performed under Section 1(4) of the Security Service Act, which is implemented by Clause 1 of this Bill.
§ I imagine that the Intelligence and Security Committee will wish to do that in any case. Clearly, it is a matter of public interest how the Security Service performs those functions. I hope that this very small amendment will have the support of government and of members of the Intelligence and Security Committee. I beg to move.
§ Lord Renton
My Lords, the noble Lord, Lord McIntosh, is justified in asking that the Committee's report shall refer to the activities under Section 1(4) of the 1989 Act as confirmed and extended by this Bill. My only doubt is whether the committee would be obliged to do that anyway. I have not considered from the legal point of view whether the amendment is necessary. However, the noble Lord's point needs to be covered in one way or another.
§ Lord Blaker
My Lords, as the only Member of this House who is a member of the Intelligence and Security Committee, it is appropriate for me to say a very brief word on this matter. I cannot speak for the committee as a whole; I can speak only for myself. Indeed, I am a relatively new member. However, I am confident that the committee will carry out whatever burden or obligation is laid upon it by Act of Parliament. There is no question about that.
1038 Secondly, I wish to remove what may be an anxiety on the part of some noble Lords that the committee does not attach much importance to this subject compared to the other subjects with which the intelligence and security services deal. The committee, as one of its early acts, issued a special report on this whole subject of dealing with organised crime, which fully demonstrates that it takes the matter very seriously indeed.
Finally, if one imposes on the committee an obligation to report separately on the activities of the Security Service on this particular subject, why should not one impose a similar obligation in relation to the other activities of the Security Service or of the other intelligence and security services? They are all important. This one is important; but the others are, too.
§ Lord Knights
My Lords, I am a little doubtful about this amendment. My particular concern is that, as with the first two amendments, we seem to be laying up trouble for ourselves when we consider the other aspects of this package introduced by the Prime Minister later in the year. We are talking not only of the activities of the Security Service but also about the activities of the police service. If the Intelligence and Security Committee is to report separately on the activities of the Security Service in relation to this matter, later in the year will we be asking the Police Complaints Authority to report on the same activities of the police? The two cannot be dealt with in isolation. The matter should be dealt with as a whole in the Bill and this item should not be dealt with separately. The same remarks apply to Clause 1.
§ 5 p.m.
§ Baroness Blatch
My Lords, like my noble friend Lord Renton, we welcome the spirit behind the amendment. The Intelligence and Security Committee—the ISC—is an important element of the accountability arrangements that govern the Security Service and the other intelligence agencies. Not only that, because it is made up of parliamentarians, it is one of the key ways that the intelligence agencies remain accountable to your Lordships and to the members of another place. I know that members of the Committee, of whom my noble friend Lord Blaker is a distinguished representative of your Lordships' House, take their duties to "examine the expenditure, administration and policy" of the intelligence agencies very seriously.
I am confident that the ISC will want to carry out its responsibilities in regard to the Security Service's new serious crime function. Last December (at which point my noble and learned friend Lord Howe represented this House on the Committee) the committee published a special report on that very topic which concluded that the Security Service had distinct skills which it could bring to the fight against organised crime. It made similar comments in its annual report for 1995, which was published in March of this year. It gave a very clear hint that it would keep an eye on this issue when it said: "Our interest will be to see that the working arrangements for any such organisation enable the Agencies to pursue their supporting roles effectively".
1039 Having said that, I do not think it is right for us to tell the ISC, which is, after all, an independent committee, how it should carry out its functions. It may want to include a separate section in its annual report on the Security Service's serious crime work. Equally, it may want to make more general observations about the service's work across its functions. It may want to draw attention to a particular aspect of the service's work, or even a particular problem, that affects all of the service's functions. Similarly, it may want to draw comparisons between the Security Service's serious crime work and that of other agencies. It may want to report to the Prime Minister on the implications for the other functions of the Security Service of its work against serious crime. It may even want to produce a separate report on the issue, as it has done before. All of these matters could be made more difficult if the ISC was required to have a separate section in its annual report on the Security Service's serious crime work.
As the noble Lord, Lord Blaker, commented, why should that aspect of the Security Service's work be dealt with separately? More than that, these are surely matters for the committee and it would be wrong to tell it how to structure its report or to constrain it from presenting the information that it has in the form that it wants.
I have every confidence that the committee will give all due scrutiny to the Security Service's serious crime work, as it does to all other aspects of the work of the intelligence agencies. My right honourable friend the Home Secretary has already given a commitment in another place that the Prime Minister will always seek to publish as much as possible of any ISC report dealing with the Security Service's new function.
I hope that in the light of this the noble Lord, Lord McIntosh, will agree that it would be better not to tie the hands of the ISC in the way that the amendment proposes and that he will consider withdrawing it.
§ Lord McIntosh of Haringey
My Lords, I have no difficulty in withdrawing the amendment. The purpose of the amendment, as the Minister knows, was to get her to talk, on the record, about the way in which the ISC will prepare its report and the consideration that it will give to the new functions.
It is self-evident that if Parliament imposes new functions on a service, it will require supervision and some reporting back of what happens. Like the Minister, I have no doubt that the ISC will wish in its report to include a section or sections referring to the functions which are added. The question of whether or not it is on the face of the legislation is a secondary issue. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 [Warrants]:
Lord McIntosh of Haringey moved Amendment No. 4:
Page 2, line 5, at end insert—
("( ) A warrant issued on the application of the Security Service for the purposes of the exercise of their function under section 1(4) of the Security Service Act 1989 shall only he granted by a judge of the High Court or Court of Session.").
§ The noble Lord said: My Lords, Amendments Nos. 4 and 5 deal with the very grave concerns that were expressed in Committee about provision for warrants in Clause 2 of the Bill. At the time we were only able to discuss them, no doubt due to my inadequacy in drafting amendments, on the Motion that Clause 2 stand part of the Bill, and for obvious reasons we did not press that to a Division.
§ Our concerns were about the difference in regime for warrants between the Security Service and the police forces they are helping in the pursuit of serious crime. The Government acknowledged the factual basis of our concern. There are two regimes for intrusive warrants. One regime applies to the police where there is adequate judicial control of warrants for arrest and search of property, but inadequate control of warrants for intrusive surveillance; that is, entering property and installing bugging devices and the various activities concerned with telephone tapping or the interception of mail.
§ It is acknowledged that although the police carry out those activities, they see themselves as being at risk of being accused of criminal trespass if they exercise the powers which they have assumed to themselves and which they have been assumed by the public and Parliament to have. It is acknowledged that the powers of the police are not entirely satisfactorily dealt with by legislation. The Minister stated that subsequent legislation would put that situation right. I accept that that is a genuine desire.
§ The second regime is that which applies to the Security Service, acting in accordance with the functions given under the Act. It is proposed that they should operate in regard to warrants under the same regime which applies to the rest of their functions, the normal functions of a security service concerned with national security and related matters. That regime provides for the warrants to be authorised not by the judiciary but by the Secretary of State.
§ The Minister rightly corrected me when I said that the Secretary of State can readily delegate his powers under the Security Service legislation. I accept what she said, that it is strictly reserved to the Secretary of State under his hand and that only in emergencies can an exception be made. My objection is not that the Secretary of State can delegate too easily his powers under the legislation. However, my objection is that it is the Secretary of State advised by the Executive rather than the judiciary who have the power to authorise warrants. That situation still remains.
§ I still believe that the concerns expressed by the noble and learned Lord, Lord Browne-Wilkinson, are valid. I do not know whether he has had any further thoughts since our Committee stage, and I do not know—because I have not discussed it with him—whether he feels able to support this amendment. He spoke powerfully in favour of the principle that intrusive warrants of this kind—warrants which go to the heart of the power of law enforcement agencies to interfere with an individual's privacy and activities—should be judicially authorised rather than authorised on the recommendation of the Executive. That is the basis of Amendment No. 4, and I understand that Amendment No. 5 seeks to achieve the same objective. I beg to move.1041
§ Lord Rodgers of Quarry Bank
My Lords, I want to speak primarily to Amendment No. 5 standing in my name. As the noble Lord, Lord McIntosh, said, its purpose is similar to that of Amendment No. 4 but it seeks to approach the same problem in a different way.
Earlier this afternoon I said that from these Benches we had expressed anxiety about this Bill from the start—from the Queen's speech and at each stage thereafter. But perhaps I can say in parenthesis, as this may be my only opportunity to do so, that I am grateful to the Minister who has been helpful at all stages of the Bill, both on the Floor of the House, in Committee and also in correspondence. I notice that I omitted to thank her for her letter dated 6th June which dealt with an opinion obtained by Liberty and I now do so. Nothing which I have said or will say today bears upon the determination and helpfulness that the noble Baroness has shown in bringing this Bill to the House, nor does it cast doubt on the argument that she has frequently set before us, that the Bill had all-party support in another place, as it does here in so far as it seeks to deal with organised or serious crime as we are now bound to call it.
Though the principle of using the Security Service to fight organised crime is one that attracts us all, in my view, in practice, the consequences of deploying the Security Service in support of the police is potentially alarming. It is that matter to which Amendment No. 5 is addressed. The Minister said in Committee, and may well say again today, that our anxieties are unjustified. She may refer, for example, to long-standing co-operation with Customs & Excise. I am sure that she is right about the experiences of the past and I hope that she is right about the future as well. However, over the years the powers of this Bill, if it is passed as it stands, could turn out to be one step too far.
The noble Lord, Lord McIntosh of Haringey, referred to the remarks made by the noble and learned Lord, Lord Browne-Wilkinson, in Committee. I see that the noble and learned Lord is in his place today. He said,I believe that what is being proposed in Clause 2 of the Bill is a major constitutional shift".—[Official Report, 10/6/96; col. 1530.]If indeed it is a major constitutional shift, it is something which this House should address. If this House decides that it does not want to amend the Bill, nevertheless it is important that the anxieties of a number of noble Lords are placed on record.
The noble Lord, Lord McIntosh, spoke about his amendment and clearly explained its purpose. In Committee he was succinct when referring to the absence of a judicial trigger, and it is that absence of a judicial trigger that my amendment seeks to remedy, as indeed does his. Amendment No. 5 seeks to fill that gap by requiring a High Court judge to approve the issue of a warrant.
It may be that the amendment is defective in drafting and, if so, no doubt the Minister will say so. But I hope that she will address the substance of the matter. If it is only a question of drafting, I am sure that she will be able to advise the House at the final stage of the Bill on the way in which that can be remedied.
1042 I hope that the Minister will not say that it would be inappropriate for a High Court judge to second-guess a Minister. We had a debate in your Lordships' House not more than two weeks ago on the whole question of the role of the judiciary, initiated from the Opposition Benches by the noble Lord, Lord Irvine of Lairg. The Lord Chancellor replied to that debate. He said nothing that I could judge on that occasion-5th June—which cast any doubt upon the present arrangements for judicial review, uncomfortable and unpopular though some of the recent outcomes have been for the Government. Therefore he did not seek to dispute the role of the judges in that respect.
I looked at the leaflet which the Minister kindly sent to those of your Lordships who participated in the debate at Second Reading. It refers to the role of the commissioner and says that,The Act establishes the Commissioner who is a senior judge, independent of the Government, who keeps under review the issue of property warrants".The Minister herself, in the debate in Committee, referred to a judge having an additional oversight—I believe that was her expression. I would be interested if the Minister could explain more fully exactly how, using her words, the commissioner has an additional oversight or, using the words in the leaflet,keeps under review the issue of property warrants".Whatever the senior judge may do, the fact that he does it at all and that this is part of our present legislation—set out clearly in this leaflet as it was set out by the Minister herself—if a judge is at present responsible for surveillance of the acts of the Home Secretary, I cannot see that there can be any objection to a High Court judge being an extra safeguard for the citizen by being required, in the terms of my amendment, to approve an order of this kind. As I say, it is an extra safeguard for the citizen which is not a trifling matter; it is not ephemeral, but goes to the heart of our fundamental and long-cherished freedoms.
I am sure that your Lordships' House and those who have followed this matter from the outside will be reassured if we introduce an element of this kind into the Bill. It is not beyond the capacity of the Minister to draft such an amendment and it would be a safeguard which we should all welcome. It would not in any way detract from the proper role of the Home Secretary nor, least of all, undermine the privileges and responsibilities of your Lordships' House.
§ 5.15 p.m.
§ Lord Browne-Wilkinson
My Lords, at Committee stage I expressed inadequately and confusingly my anxieties in regard to Clause 2 of this Bill. I asked whether I had got hold of the wrong end of the stick as to its constitutional impact. I have still not heard anything to suggest that I had. I hope that your Lordships will bear with me as I spell out in more detail what is the constitutional threat that I see this clause presenting.
In this country we have never had a written constitution. I listened to the Prime Minister last night expressing in ways with which I agree his confidence in 1043 our freedoms; that freedoms are our constitution. Those freedoms are based on the common law of England, Wales and Scotland. Under the common law nobody can enter into my house, take my property or come onto my property in any way save in limited circumstances to which I shall turn in a moment. If the police, a member of the Security Service or of the Army come to my door and I can get to a judge in time, they will be restrained by injunction.
Our basic freedoms and privacy in our homes are secured under the general common law of this country. If you once take those freedoms away nothing is left in our constitution which, to the extent to which the law is effective, can protect our freedoms. The inability of the state under executive warrant to come into my house to seize my goods was established in the pillar of our constitution in the decision of the courts in Entick v. Carrington in 1757, saying that the Minister was in no different position from any other person. I was glad to hear the Minister say recently that it is obvious that the rule of law prevails. So it is and so it should be.
In relation to police matters experience has shown that there have to be exceptions to the inviolability of the home, which is preserved by the common law. So I hope that there can be no misunderstanding that over the years Parliament is sovereign. It can take away our liberties by legislation, I hope after due consideration but not otherwise. In relation to police matters for many years they have had the power to enter and search, but only under a warrant granted by a judge and ahead of the invasion of private rights and on satisfying an independent person that there is a need for that to happen. What has never happened in policing matters hitherto, since Entick v. Carrington, is proposed in this Bill almost by accident; that is to say, an executive warrant enabling entry into English property; the burgling and bugging of it, under executive warrant, which is the very thing that has been fought by the law and all interested in liberty, for many hundreds of years.
I ventilated this matter at Committee, but I still have not had any explanation. All that is said is that under the security services provisions this can be done already. The position is complicated and I shall deal with it as shortly as I can. The functions of the secret intelligence service under the 1994 Act include supporting the prevention and detection of serious crime. Therefore, that part of the Security Service has a function in relation to crime. However, its function applies only in relation to persons outside the United Kingdom. More important and more relevant for present purposes, the right to enter property does not apply to any property inside the British Isles. It is not right that currently the Home Secretary has any right to authorise entry into property in the United Kingdom in relation to foreign intelligence services. Under the Security Service Act, until now the security services have had no policing function, and that is the purpose of this Bill. In their security functions they have power to get an executive warrant from the Home Secretary to enter premises for the defence of national security.
So far as I can see, what has happened casually, in a House which has remarkably few people in it, is to carry over from the national security, twilight, Smiley's 1044 People world, into the every day life of policing, excessive powers of a kind that this country has always resisted and which are basic to its freedom. Given the way in which the media in recent times occasionally treats judges, I make it quite clear that I am not soft on crime. I am dead against serious crime, especially drug-related crime. Those who know better than I do say that the addition of the security services into the fight against it is a good thing. In that case I am for it. What I am not for is the carry over of powers, which are unhappily necessary in the context of national security, into a policing function enabling a member of the Executive to sanction entry onto private property without prior judicial warrant.
I am speaking perhaps rather too seriously, but I believe it to be a serious matter. At Christmas time there are stickers on cars saying, "Puppies are not just for Christmas". This Bill is not just for this Government and the present position, but forever hereafter until your Lordships seek to repeal it. I am not suggesting for a moment that this Government, the Home Secretary, let alone the Minister, will abuse the new Act, because they will not. But we are not just legislating for this Government or the next, of whatever party; we are actually impairing the constitutional freedoms of the individuals of this country. To my mind that should not be done by a side wind by an empty House—it is empty now, but perhaps it will be fuller later when it comes to voting. People should be considering what is being done.
In the light of what the Prime Minister said last night, I hope that there are people on both sides of this House who, although they support the main structure of the Bill, will think again about whether it is really desirable that in policing matters there shall be rights to bug and enter, covertly and not covertly, exercisable for the future against people corresponding to those protesting at the Newbury by-pass and the poll tax and against whom warrants under this new Act can be issued, even although not by this Government. But not all governments in 100 years' time are going to be scrupulous. I hope that there are Members of this House, including the Government, who think that this is a step which deserves further consideration before it slides through, almost by a side wind.
My Lords, I apologise for wishing to speak on the Security Service Bill and the amendments at this stage, having unfortunately not been able to be present during the Second Reading or all of the Committee stage. However, I would like to explain briefly why I do not support the amendments. It is for a fundamental and basic reason—that is, that we should preserve, in as many respects as possible, the separateness between the Security Service and the law enforcement agencies.
Their respective roles are quite different and distinct. As noble Lords know, the Security Service has no executive powers; it is an intelligence organisation and, while having a statutory identity now, it is essentially a secret service. If one reflects on the nature of its work, countering terrorism, subversion and espionage, it must remain a secret service. The noble Lord, Lord Knights, 1045 reminded us in his notable contribution at Committee stage, that the Security Service and the police have a long history of collaboration and joint operations, especially in the field of counter-terrorism and, since October 1992, the Security Service has assumed the lead role in combating the IRA. I understand that it currently remains an effective relationship, well illustrating that the services can work together with existing control and accountability arrangements.
Although it has been decided that at the invitation, and under the operational control, of the National Criminal Intelligence Service the Security Service may, if so invited, provide support in fighting serious crime, I do not see that as justifying changes in accountability in view of the elaborate arrangements which already exist. The Security Service has developed certain operational techniques, especially in dealing with terrorism and espionage, which could have an application—again, if so requested by the police—in fighting serious crime. It is worth remembering that many terrorist organisations engage in serious crime and organised crime for fundraising purposes.
As to introducing a new judicial factor with regard to the granting of warrants, my understanding is that the present exercise of ministerial judgment and responsibility is based on intelligence factors, not often involving issues that call for a judicial standard of proof. Intelligence factors have a relevance to the operational techniques which might be used when fighting serious crime. The judicial element which is introduced through the oversight arrangements can, in effect, validate Ministers' judgments.
Finally, I think that the most effective way of limiting the role of the Security Service in this one area and the best way of avoiding the turf wars which can always develop is to maintain strictly the separateness of the two services.
§ 5.30 p.m.
§ Lord Knights
My Lords, I return again to the point that I made a few moments ago. We are now debating not simply the powers that may be given to the security services, but the powers which will be sought for the police service later this year. I think that we need to keep that in mind when we decide what to do with regard to this amendment.
What worries me about the amendment is that it seems to suggest that the security services can move in one way for part of their work but in another way when they are engaged in the criminal field. However, in many cases there is very little difference between the two. What is the difference between terrorism and espionage and organised or serious crime? There is nothing more organised than the terrorism which is conducted by the IRA. Where do we draw the line? If we are to deal with such organisations and with some of the organised crime groupings which we have been told are a tremendous threat to this country—no one has denied that—secrecy has to play a part. It has to be at the heart of some of the investigative work that is carried out.
1046 The security services have the power or the authority now to get a warrant to intrude into premises to bug them—there is no other word for it—when dealing with terrorism. It seems to me that there is very little difference, if any, between dealing with that and dealing with other crimes involving the same type of activity, and explosives and firearms which may not normally be regarded as "terrorism". My dictionary tells me that "terrorism" is,systematic intimidation as a method of governing or securing political or other ends".It seems to me that someone who is seeking to blackmail a supermarket chain by way of adulteration of its products could fall within that definition of "terrorism". It would certainly be "organised" and it would certainly be "serious". If such activities are to be regarded as terrorism when they are dealt with by the security services, bringing forward the authority to get an intrusive warrant, it is splitting hairs to decide in other cases that that is not appropriate and that the intrusive approach cannot be used.
I indicated previously that to my knowledge, which is now a little out of date, the police without any judicial authority occasionally intrude and place bugs when dealing with terrorism. After all, it is only 18 months since dealing with terrorism in the form of the IRA was taken away from the Metropolitan Police. While they were responsible for investigating such crimes in this country, they would obviously undertake the same activities as the Security Service.
I also wonder whether the special skills of investigation are not being played up a little too much with regard to the Security Service. Such investigation involves the bugging of premises in order to obtain information and intelligence. Senior police officers who have been involved in such activities over the years must have the same kind of skills and need the same kind of authority to obtain the information and intelligence on which they are to base their actions. What is the case for having differing methods of obtaining intrusive warrants according to the function which the Security Service is undertaking? If it is not appropriate for members of that service to have such a warrant when dealing with serious crime, how can it be any different when they are dealing with what is regarded not as serious crime but as something else; namely, espionage or terrorism? I really do not see how one can discriminate or differentiate between the two activities.
My feeling at the moment is to oppose the amendment so that the security services do not have to decide whether they are dealing with one kind of activity rather than another and, on the basis of that, where to go for a warrant. I would much prefer to give them the same powers in connection with serious crime as they currently have for what is not at the moment said to be serious crime but something else, and to leave the whole question of intrusive warrants and whether we are or are not going too far until we reach that matter later.
§ Lord Harris of Greenwich
My Lords, I apologise for not having been present throughout the whole debate. Given that there is now a great deal of activity outside the House concerning the extraordinary affair of the handling of the Asylum and Immigration Bill, to 1047 which I have had to give a fair amount of attention this afternoon, I have not been able to follow the whole of this debate although I had the good fortune to hear the speech of the noble and learned Lord, Lord Browne-Wilkinson.
The matter which concerns me today is exactly that which concerned me on the last occasion we considered this Bill. It was touched on by the noble Lord, Lord Knights. I refer to the question of how we can possibly maintain a system in which the Security Service is given the powers which are set out in the Bill and the police, who will be dealing with exactly the same issues in, arguably, the same investigation, operate under non-statutory Home Office guidelines. Frankly, it makes no sense whatever.
The Minister's answer is to say, "There is nothing to worry about. We shall be looking into this and introducing legislation in the next Session of Parliament", but that is no answer at all. We are talking about a government who have at the most another seven or eight months in office. Of course, they may be re-elected, but the next Session will be exceptionally short. There is therefore no certainty that any legislation introduced by the Government—that is, assuming that such legislation is introduced at all—will be enacted before the end of this Parliament. The serious issues which have been raised by the noble and learned Lord are simply not addressed adequately by the arguments which have so far been adduced by the Minister.
As far as I am concerned, the central issue is that of separateness between the treatment of the Security Service which, however unsatisfactory this clause is, will at least be acting under some form of statutory provision, and that of the police, which will not be in that position.
To repeat the point that I made on the last occasion, the noble Baroness will be aware that the Association of Chief Police Officers has repeatedly put this matter to the Home Office and has been fobbed off with the explanation that the Government will legislate as soon as they have an opportunity to do so. However, for the reasons I have given I do not believe that that is an answer because of the limited period of the current Parliament. The noble Lord, Lord Cuckney, who has experience in this area stated, by implication, that it was necessary to avoid turf wars between the police and the Security Service. I agree with him. In the past there have been such turf wars between the police and Customs and Excise in the course of drugs investigations. That is something to be avoided at very nearly all cost. But for the reasons I have indicated I do not believe that it is desirable to maintain this degree of separation. I believe that in an arguably short period of time substantial tensions will arise between the police and Security Service because of the different statutory frameworks under which they will operate. The Security Service will at least have a clearly defined statutory position but the police will have nothing, except non-mandatory Home Office guidelines. That causes me serious disquiet and, rather more importantly, serious disquiet to a large number of senior police officers.
§ 5.45 p.m.
My Lords, there is no doubt that this is an important issue. The amendments seek to introduce a new role for the judiciary in authorising property warrants in pursuance of the Security Service's new serious crime function. I am grateful for the interventions of my noble friend Lord Cuckney and the noble Lord, Lord Knights. Of all noble Lords in this House, they speak with direct experience of these matters.
The involvement of the judiciary at this stage of an operation by the Security Service when the primary focus is likely to be the gathering of intelligence is a novel and, I suggest, an unnecessary departure from the existing arrangements. The present system works well, safeguarding the public interest while meeting the needs of the Security Service. The amendment of the noble Lord, Lord Rodgers would introduce an even more novel concept, namely the idea of a system of dual authorisation involving both the Secretary of Sate and a High Court judge under which the Secretary of State would not be allowed to take a decision until he had the consent of a member of the judiciary.
The safeguards surrounding the issue of property warrants already incorporate a role for a senior member of the judiciary. The Security Service Act 1989 made provision for the appointment of the Security Service commissioner, an office which is currently held by Lord Justice Stuart-Smith. The duties of the commissioner include overseeing the exercise of the Secretary of State's power to issue property warrants and investigating complaints relating to the interference with property. If he finds that a warrant has been improperly issued or renewed he can order the warrant to be quashed and compensation to be paid. This is a very important safeguard. I suggest that this is a more appropriate avenue for judicial oversight than the prior approval of individual warrant applications which is envisaged by these amendments. There would also be practical difficulties. I will deal first with the system proposed by the noble Lord, Lord McIntosh, whereby ministerial authorisation would be replaced by judicial authorisation for property warrants under the Security Service's new serious crime function. It is quite feasible that the service could be investigating a drug trafficking operation which was being used to fund terrorist activity. This blurring of the functions was touched upon by the noble Lord, Lord Knights. This would be relevant to the Security Service's new serious crime function and its existing national security responsibilities. In these circumstances, although the service would know under which of its statutory functions the operation had been initiated there could be some property warrants which had been authorised by the Secretary of State and some authorised by a High Court judge. This is unsatisfactory. It is important that there should be a single authority who is responsible for granting the warrants required for a single operation.
Turning to the system proposed by the noble Lord, Lord Rodgers, there would be a wasteful duplication of effort if the High Court judge and the Secretary of State both carried out identical functions of approving warrant applications. This could have the effect of reducing the 1049 Secretary of State's role to that of rubber-stamping the decisions of the judge. It could also limit the operational effectiveness of the Security Service if, in an urgent operation, the consent of a High Court judge had to be secured before gaining ministerial authorisation.
It is not just the practical problems about which we are concerned. There must also be grave doubts about whether the authorisation of this type of warrant is an appropriate function for the judiciary. There is an important distinction between property warrants now issued under the Intelligence Services Act and search warrants issued under the Police and Criminal Evidence Act, which are authorised by the judiciary. Search warrants are overt and are normally disclosed to the subject of the warrant at the time of their execution. Property warrants, by contrast, are covert and will not be disclosed at the time of their execution. The only way in which the subject of a warrant could become aware of its existence would be in the course of any subsequent court proceedings. Given that property warrants will often be issued for the purposes of intelligence gathering rather than the collection of evidence, there is a good chance that these warrants will never be disclosed to their subject. This would be a new departure for the judiciary. Rather than the openness and independence of the normal judicial process, judges would be involved in the covert development of operations. This may be seen as a threat to their impartiality by placing them firmly in the law enforcement camp.
If the desire to involve the judiciary stems from a wish to see independent oversight, I suggest that the present system under which the commissioner applies the principles of judicial review to determine whether the Secretary of State has acted properly in granting a warrant is preferable. The commissioner, who must hold or have held high judicial office, is in a position to take a common view across all property warrants, whereas if all warrants are to be approved by a High Court judge prior to consideration by the Secretary of State the duties will have to be shared between a group of judges.
I listened carefully to the observations of the noble and learned Lord, Lord Browne-Wilkinson. But it is important not to undervalue the significance of the requirement for the warrant to be authorised by the Secretary of State. It is a major hurdle that warrant applications should have to be so authorised. As the legislation presently stands, the personal authorisation of the Secretary of State is required in every case. Even in urgent cases where the Secretary of State is unavailable to sign the warrant personally, it is the practice for the authorisation to be given by the Secretary of State over the telephone to a senior official who completes the signing of the warrant under his authorisation.
The Secretary of State is an entirely reliable and trustworthy authority to grant warrants, particularly when the existing legislation provides a set of additional safeguards. In the commissioner's most recent annual report published earlier this month Lord Justice Stuart-Smith confirmed that he was satisfied that the Secretaries of State had properly exercised their powers under the Act. Furthermore, this reliance on the 1050 Secretary of State to authorise Security Service warrants accords precisely with the existing arrangements for securing the accountability of the Security Service. Under the Security Service Act 1989 the service is ultimately accountable to the Secretary of State. This reflects the sensitive and covert nature of the service's operations. The authorisation of warrants is a logical extension of this accountability, and at present all Security Service warrants, both interception and property, are authorised by the Secretary of State. The fact that the Secretary of State authorises all warrants greatly simplifies the application of consistent standards and makes it easier to identify problems. In addition, the authorisation of warrants offers the Secretary of State an important insight into the Security Service's operations, which provides an extra control on the service's activities.
I should like to run quickly through the other safeguards governing the issue of property warrants. I have already referred to the requirement for warrants to be authorised by the Secretary of State and the oversight role of the commissioner. The legislation also specifies that the action to be taken will result in the service obtaining information which cannot reasonably be obtained by other means and is likely to be of substantial value in assisting the service to carry out its functions. The Secretary of State must also be satisfied that arrangements are in place to control and restrict the disclosure of information gained in this manner.
In summary, we have a system for authorising those property warrants, which is carefully regulated and surrounded by an appropriate set of safeguards. The system has worked well for the authorisation of warrants in respect of the security services' existing functions. The requirement for warrant applications to be authorised personally by the Secretary of State is an important and effective safeguard which complements the accountability arrangements for the Security Service.
In addition to all of that, there are well-established arrangements for supplying independent judicial oversight of the Secretary of State's decisions, in a manner akin to the process of judicial review, through the role of the commissioner. Those arrangements are robust. They take full account of the intrusiveness of the powers we are discussing. They would not be enhanced by either of the amendments, and therefore I hope that the House will not accept them.
§ Lord Renton
My Lords, before my noble friend sits down, would she care to add that there is a further safeguard which I did not hear her mention; namely, that the Secretary of State is answerable to Parliament for his decisions in such matters as this as in other matters, and can be questioned about them in Parliament?
§ Baroness Blatch
My Lords, I can give an absolute and unequivocal answer to that. Of course that is right. Not only that, it was this Government who put all of that on a statutory footing and thus opened up this whole area of activity. It is important that we balance how the intelligence services work, and will work in future in support of the police with the openness, as far as is practicable, of full accountability to Parliament.
§ Lord Browne-Wilkinson
My Lords, before the Minister sits down, I am still not clear, having now asked twice, whether the Government accept that this Bill involves constitutional change, but say that expediency justifies it, or whether the Government say that there is no constitutional change here. It is an important point.
§ Baroness Blatch
My Lords, it is indeed an important point. The powers of the security services are not being extended constitutionally, or in any other way. It is a new area of activity to which all the existing systems will be applied. The Home Secretary will give his authorisation to warrants which will incorporate the new function that will be given to the security services under the Bill.
§ Lord Harris of Greenwich
My Lords, I wonder whether the Minister will deal with a point that I raised, which is the continuing concern of the police service about the different treatment accorded it as compared with the Security Service as a result of the passage of this legislation. What precisely do the Government propose to do to deal with those concerns?
§ Baroness Blatch
My Lords, I have to be repetitious in my answer to the noble Lord because I have answered the question, I think, more than once. The Government intend to legislate—they have made that clear—at an early opportunity. Even given the timetable that has been mentioned by the noble Lord, the Government are continuing the preparatory work for that legislation. We made it clear on Second Reading and in Committee that the Government see the Bill as a piece of free-standing legislation which will not preclude further legislation to deal with matters concerning the police.
§ Lord McIntosh of Haringey
My Lords, when we first discussed this clause, I set out three objectives for our consideration of Clause 2. The first was that there should be congruity between the warrant powers of the police and those of the security services when they are, in effect, doing the same thing: when they are working together under the functions as described in Clause 1.
It is acknowledged, and I have to acknowledge, that that will not be achieved by anything we do during the consideration of the Bill. As the Minister has just said, that will have to be done in a broader Bill which will be introduced at the earliest opportunity. So, I give up on that one! There is nothing that can be done.
The second was to seek an assurance that there will be no tacit extension in the Bill—nothing is said on the face of the Bill—of bugging powers for anyone; in other words, no one, as a result of the Bill, will have greater power than they now have. That cannot be achieved. There will have to be legislation to set out more clearly than the legislation does at the moment the extent of the warrant power of the police and of the security services.
1052 However, before we leave that point, I must remind the House that the noble and learned Lord, Lord Browne-Wilkinson, has now asked three times for an answer to the question as to whether there are constitutional implications. He explained clearly that he meant the constitutional implications of the extension to the Executive of the power to invade the privacy of British people in their own homes. He did not receive an answer. The conclusion must be drawn from that that there is indeed an extension of the powers of the Executive, advising the Home Secretary on what can be done by the security services, acting in support of the police.
Our third concern was that there should be, as there is now for property warrants by the police, judicial rather than Executive authorisation. Again, there has been no adequate answer to the questions posed or the issues raised. Some of the debate has, I think, been based on a severe misunderstanding of what Clause 1 says.
The noble Lord, Lord Knights, said that the security services should not have to make decisions as to whether they are dealing with one kind of case or another. Clause 1 makes it absolutely clear that when they are acting in support of the police in that way they are doing so under the conditions of Clause 1; they are acting under authority which is expressly given; and there should and can be no confusion whatever as to under what authority they are acting.
If the Minister then says, as she did, that there is a blurring of functions between the two, and the actions can be initiated under a single authority but can go back to another authority, then she casts doubt on the effectiveness of Clause 1 in drawing the distinction between the new functions of the security services and the original functions. That would lead me, if it were true, to worry even more about the separation of powers which is provided for in Clause 1.
The Minister referred to the role of the judiciary and doubted whether members of the judiciary were the right people to deal with these covert operations. Plenty of police operations are covert. The investigation of serious crime has always been covert. No one does this, if they can avoid it, under the glare of publicity. I cannot tell whether the Minister is seriously suggesting that there is something different about the serious crime which will be investigated with the collaboration of the security services, or whether she is saying that the judiciary is not fit to deal with covert operations of this kind.
I remind the House that the judiciary has historically been involved in covert operations. The judiciary has the responsibility, for example, of examining all papers, even concerning national security, which are given immune certificates by Ministers. We do not need the Scott Report to remind us of that. It was the judge who had to decide about the applicability of the evidence in the Matrix Churchill case. There have been many cases in the past. There is no doubt that the judiciary is privy to the secrets of state and has been so on many occasions. The judiciary is certainly capable of dealing with individual issues as to whether a warrant of this 1053 kind is appropriate. That does not mean, to use the Minister's words, that the judiciary would be involved in the covert development of operations. The judiciary is not directing or involved in operations by making a decision in accordance with law as to whether a particular warrant should be granted. It is an individual judicial decision; it is not a policy decision as to the direction of operations.
None of the answers that have been given convinces me that the Government have truly appreciated the fundamental points which were raised by the noble and learned Lord, Lord Browne-Wilkinson. The extension of bugging powers, the extension of these warrants, from the judiciary to the Home Secretary—to the Secretary of State—is a fundamental change, as the noble and learned Lord rightly pointed out.
§ Baroness Blatch
My Lords, I rise with the leave of the House to say that I am accused of being deliberately evasive to the noble and learned Lord, Lord Browne-Wilkinson. I referred not to an extension of powers but to adding a new function and applying the existing powers to that new function. If the noble and learned Lord is talking about domestic properties, perhaps I may point out that the Security Service already has and is able to exercise property warrant powers if it is in the national security interest.
§ Lord Browne-Wilkinson
My Lords, if the Minister looks at Hansard she will see that I said exactly that. What is changed is that in policing activities for the first time in the United Kingdom since Entick v. Carrington in 1757, whatever the date, the Home Secretary and the Executive are taking the power to enter, bug and burgle. I believe that I am right about that. I have checked the matter carefully and I believe that the Minister is agreeing with what I am saying. That is what I see as the constitutional change.
§ Lord McIntosh of Haringey
My Lords, the record will show that I did not say that the Minister was being deliberately evasive. I said that the noble and learned Lord had asked his question three times and had not received an answer. That is not being deliberately evasive. I am not casting aspersions on the honour of the Minister. I am merely saying that there is no answer; the Government do not have an answer to the question which the noble and learned Lord has posed.
In the absence of an answer it must be the case that the noble and learned Lord is right in saying that what the Bill proposes is the overturning of the judgment of Entick v. Carrington in 1757 which stated, and I paraphrase, that a Minister is like any other person; he has no power to burgle or invade the privacy of the home of a citizen of this country. That is the basis on which Amendment No. 4, which provides for judicial authority rather than ministerial authority, is based and I put that question to the House.
§ 6.3 p.m.
§ On Question, Whether the said amendment (No. 4) shall be agreed to?1054
§ *Their Lordships divided: Contents, 49; Not-Contents, 1071055
|Division No. 2|
|Addington, L.||Monkswell, L.|
|Beaumont of Whitley, L.||Monson, L.|
|Browne-Wilkinson, L.||Morris of Castle Morris, L.|
|Chorley, L.||Nicol, B.|
|David, B.||Plant of Highfield, L.|
|Dean of Beswick, L.||Rea,L.|
|Dormand of Easington, L.||Richard, L.|
|Dubs,L.||Robson of Kiddington, B.|
|Falkland, V.||Rodgers of Quarry Bank, L. [Teller.]|
|Gladwin of Clee, L. [Teller.]||Russell, E.|
|Graham of Edmonton, L.||Seear.B.|
|Grey.E.||Simon of Glaisdale, L.|
|Hamwee, B.||Stallard, L.|
|Harris of Greenwich, L.||Stoddart of Swindon, L.|
|Hoffmann, L.||Thurso, V.|
|Holme of Cheltenham, L.||Tordoff, L.|
|Irvine of Lairg, L.||Turner of Camden,B.|
|Jeger, B.||Wallace of Coslany, L.|
|Jenkins of Putney, L.||Wallace of Saltaire,L.|
|Kilbracken, L.||Whaddon, L.|
|McIntosh of Haringey, L.||White, B.|
|McNair, L.||Williams of Elvel.L.|
|Mishcon, L.||Winston, L.|
|Abinger, L.||Gardner of Parkes,B.|
|Aldington, L.||Harding of Petherton, L.|
|Allenby of Megiddo, V.||Harmsworlh, L.|
|Ashbourne, L.||Hayhoe, L.|
|Astor of Hever, L.||Henley, L.|
|Belhaven and Stenton, L.||Hertford, M.|
|Blaker, L.||Holderness, L.|
|Blatch, B.||HolmPatrick, L.|
|Boardman, L.||Hooper, B.|
|Boyd-Carpenter, L.||Inglewood, L.|
|Brabazon of Tara, L.||Jakobovits, L.|
|Braine of Wheatley.L.||Kenyon, L.|
|Brookeborough, V.||Keyes, L.|
|Brougham and Vaux, L.||Knights, L.|
|Butterworth, L.||Lawson of Blaby, L.|
|Cadman, L.||Leigh, L.|
|Caithness, E.||Lindsay, E.|
|Caldecote, V.||Lucas, L.|
|Campbell of Alloway, L.||Lucas of Chilworth, L.|
|Campbell of Croy, L.||Lyell,L.|
|Carnegy of Lour, B.||McConnell, L.|
|Chalker of Wallasey. B.||Mackay of Ardbrecknish, L.|
|Clanwilliam, E.||Mackay of Clashfern, L. [Lord Chancellor.]|
|Clark of Kempston, L.|
|Colwyn, L.||Mackay of Drumadoon, L.|
|Courtown, E.||Macleod of Borve,B.|
|Cranborne, V. [Lord Privy Seal.]||Marlesford, L.|
|Crickhowell, L.||Mersey, V.|
|Cuckney, L.||Miller of Hendon, B.|
|Cumberlege, B.||Milverton, L.|
|De L'Isle, V.||Monk Bretton, L.|
|Denham, L.||Montagu of Beaulieu, L.|
|Dixon-Smith, L.||Montgomery of Alamein, V.|
|Donegall, M.||Mottistone, L.|
|Downshire, M.||Mountevans, L.|
|Elton, L.||Mountgarret, V.|
|Erroll,E.||Murton of Lindisfarne, L.|
|Newall, L.||Seccombe, B.|
|Northesk, E.||Shaw of Northstead,L.|
|Norton, L.||Shrewsbury, E.|
|O'Cathain, B.||Strathclyde, L. [Teller.]|
|Onslow, E.||Sudeley, L.|
|Park of Monmoutb, B.||Swinfen, L.|
|Pearson of Rannoch, L.||Thomas of Gwydir, L.|
|Prentice, L.||Thomas of Swynnerton, L|
|Quinton, L.||Trumpington, B. [Teller.]|
|Rankeillour, L.||Ullswater, V.|
|Rathcavan, L.||Wharton, B.|
|Renton, L.||Wyatt of Weeford,L.|
|Romney, E.||Young, B.|
§ [*The Tellers for the Not-Contents reported 107 names. The Clerks recorded 109 names.]
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 6.12 p.m.
§ [Amendment No. 5 not moved.]
Lord McIntosh of Haringey moved Amendment No. 6:
Page 2, line 10, at end insert—
("( ) Those parts of the Police and Criminal Evidence Act 1984 and guidelines issued in association with that Act which relate to police searches of premises shall apply to the Security Service in the exercise of their function under section 1(4) of the Security Service Act 1989.").
The noble Lord said: My Lords, a number of amendments in Committee sought to introduce elements of the Police and Criminal Evidence Act into this Bill. This is a further similar attempt in Clause 2 and it is very limited in scope. The amendment states:
Those parts of the Police and Criminal Evidence Act 1984 and guidelines issued in association with that Act which relate to police searches of premises shall apply to the Security Service in the exercise of their function under section 1(4) of the Security Service Act 1989"—
in other words, the functions with which this Bill is concerned.
§ There are two possible government responses to the amendment. The first is that it is unnecessary; in other words, that those guidelines will apply. The second is that it is undesirable and that they should not apply. I hope that the Government will give the first answer and that I shall be able to withdraw the amendment. I beg to move.
§ Baroness Blatch
My Lords, as I have said countless times, the Bill before your Lordships confers no new powers on the Security Service. Rather, it allows the Security Service to use its existing powers in a new area. Among these powers is the ability to seek from the Secretary of State a warrant authorising "entry on, or interference, with property"—so called "property warrants". As has been pointed out, such a warrant could be used to enter a property to search for information.
It is important to appreciate that such searches would, by definition, be covert in nature and would often be conducted without the knowledge of the property owner. 1056 The intrusive nature of such a power is recognised by the fact that warrants require the personal authorisation of the Secretary of State and he may only issue such a warrant if the desired result could not reasonably be achieved by any other means.
The police are able to undertake similar actions on authorisation from a chief officer. This is something we have discussed during the Bill's earlier stages and, as your Lordships are aware, the Government have accepted that the present situation is unsatisfactory and intend to introduce early legislation to put police intrusive operations on a clear statutory footing.
It is important to realise that such covert searches, whether undertaken by the police or the Security Service, are very different from the kind of searches that are regulated by the Police and Criminal Evidence Act 1984. The searches which that Act deals with are the kind authorised by a magistrate or court. I remind your Lordships that the Security Service has no executive powers, and is not to be given any, and cannot apply for such search warrants.
The searches that the Police and Criminal Evidence Act deals with are overt and are normally conducted with the full knowledge of the owner or occupier of the property. The code of practice governing such searches reflects this. It therefore contains provisions stipulating that a search must normally be undertaken at a reasonable hour of the day and a requirement that the searching officer should initially attempt to communicate with the occupier of the premises and must identify himself.
This is all a far cry from the kinds of searches that the Security Service may be authorised to undertake and, I am sure your Lordships will agree, the provisions to which I have just referred, and others, would be most inappropriate for the Security Service. I hope therefore that the noble Lord, Lord McIntosh, will understand why we are unable to accept his amendment.
However, I assure your Lordships that even if the Security Service cannot be bound by the provisions of the Police and Criminal Evidence Act codes of practice, there are still a multiplicity of safeguards surrounding the issuing of property warrants. As I have already mentioned all such warrants have to be personally authorised by the Secretary of State and he can only authorise one if the end sought cannot reasonably be achieved by other means. Beyond that, the issue of all warrants is subject to independent scrutiny by an independent commissioner who is a senior member of the judiciary.
In the light of what I have said, in particular as regards the inappropriateness of the provisions of the Police and Criminal Evidence Act for the kind of searches that the Security Service may seek to carry out, I hope that the noble Lord, Lord McIntosh, will feel able to withdraw his amendment.
§ Lord McIntosh of Haringey
My Lords. I feared as much. That was the wrong answer. To summarise brutally, the Minister is saying that the Security Service will not abide by civilised standards. I do not think that the police often do so. I do not think that breaking down 1057 the door at six o'clock in the morning, which is not uncommon, sometimes with the press present, is in accordance with Police and Criminal Evidence Act guidelines, but it seems to happen quite a lot.
I am deeply disappointed that the Minister does not recognise the need to have something comparable with Police and Criminal Evidence Act guidelines. If they have to be altered to fit the circumstances of the case, then so be it. But there should not be the complete divorce from the Police and Criminal Evidence Act when these operations are being carried out in this country against serious crime and the police are also involved. There should not be a dual standard. I am disappointed but I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ 6.15 p.m.
Lord McIntosh of Haringey moved Amendment No. 7:
Page 2, line 13, leave out ("either").
§ The noble Lord said: My Lords, Amendment No. 7 is a paving amendment for Amendment No. 8. Both are concerned with the definition of "serious crime" which is used for the purposes of Clause 2 but not used for the purposes of Clause 1.
The more I read the definition used in subsection (3B), the more I think that virtually any kind of crime could be covered by this definition. There are two elements in it. First, it involves the use of violence. That is not serious violence or any particular kind of violence but violence which,
results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose".
That is not an illegal purpose but any common purpose, whether protesting about the poll tax, drowning one's sorrows about Euro 96 or protesting against the Newbury bypass. One does not have to agree with any of those issues to say that those are legitimate occasions and it is very difficult to determine who is or is not responsible for an offence at such a mass occasion.
The second part of the definition is that:
the offence or one of the offences is an offence for which a person who has attained the age of twenty-one and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of three years".
I acknowledge that that is tougher than it seems on the face of it. I acknowledge that it does not refer to all crimes which have a maximum sentence of three years or more. It means that for a first offender, an adult could reasonably be expected to be sentenced to a term of imprisonment, and, to that extent, the provision is more limited.
Now we come to the problem. Having defined the offence which is called a serious crime in paragraph (a), in terms of the circumstances in which it takes place and the purpose for which it is committed, and in paragraph (b), as regards the seriousness with which the courts will consider it, the two points are linked, not by an "and" but an "or". In other words, there is a possibility that some conduct which involves the use of any kind of
violence or is part of a demonstration by a large number of persons in pursuit of a common purpose, even if paragraph (b) does not apply, will still come under the category of serious crime. Conversely, if the offence meets the conditions of paragraph (b), even if it does not involve,
the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose",
it still meets the definition of serious crime.
§ It is difficult to imagine what is not covered by serious crime as defined in the provision. At the very least, the Government should agree to make both paragraphs necessary parts rather than alternative parts of the definition. I beg to move.
My Lords, Amendment No. 7 gives me an opportunity to put on record once more one key fact. Ministers have made clear throughout the Parliamentary passage of the Bill that the Security Service's work in the serious crime field will be directed against organised crime. The service will be tasked to act against crimes against which its special skills and expertise can most effectively be deployed. The National Criminal Intelligence Service will ask the Security Service to employ those skills against organised crime.
That point was a key element of the conclusions of the inter-departmental/inter-agency working group, to which I referred in opening the Second Reading debate, and which met last year to consider what contribution the Security Service might make to the fight against organised crime. So let there be no doubt that the Security Service will be acting against organised crime. No statutory definition of what is organised crime exists and the Home Affairs Select Committee in another place recommended that effort should not be wasted in trying to create one. That is the reason why the Bill refers to serious crime. Nevertheless, on the basis of the assurances that have repeatedly been given, and which I am happy to reinforce—that the Security Service will be deployed only against organised crime—I hope your Lordships will accept that some of the more fanciful speculation of the kinds of minor crimes that the Security Service might be set against is utterly without foundation.
The definition that is in Clause 2 of the Bill was carefully chosen. It was picked because it exactly replicates the definition that is contained in the Interception of Communications Act 1985. It is the definition that is used to govern the issue of serious crime interception warrants to the police, Her Majesty's Customs and Excise and those intelligence agencies that already have a serious crime function. The definition has been in place for more than a decade, there have been no problems, and it has worked well.
Warrants issued under the Interception of Communications Act are subject to scrutiny by an independent commissioner. None of the three distinguished members of the judiciary who have held the office of Interception Commissioner—the noble and learned Lords, Lord Lloyd, and Lord Nolan, and Lord Bingham of Cornhill whom we were delighted to 1059 welcome to your Lordships' House yesterday—has ever found cause to complain about this definition of serious crime, which is further evidence of its efficacy.
There are good arguments for consistency in legislation. In particular, it would be odd if the Security Service were to find itself subject to different definitions when applying for interception warrants and property warrants, as would be the consequence of passing this amendment. This is especially true as the service may well find itself needing to apply for both kinds of warrant in the same case. In such circumstances it would seem illogical if a different test of serious crime were to pertain.
In the light of the obvious benefits of consistency combined with the knowledge that the definition has been around for 10 years in different legislation, and has worked well—and noble Lords do not have just my word on that, but that of three very distinguished independent Members of your Lordships' House—I hope that the noble Lord, Lord McIntosh, will feel able to withdraw the amendment.
§ Lord McIntosh of Haringey
My Lords, the Minister used the amendment as an opportunity to reiterate the Government's determination to pursue organised crime with all the legitimate means at their disposal. Therefore I can use the amendment as an opportunity to reiterate our support for that objective, and for the fundamental principle of this Bill in seeking to provide additional weapons in the fight against organised crime.
I am glad that I am not a lawyer because if I were I should be worried about the way in which the Minister always refers to organised crime when referring to the objectives of the Bill, although the word "organised" does not appear as such. However inadequate it may be, and however remote the analogy may be between this and the previous legislation, I appreciate that the definition of serious crime has been used before, and I appreciate the virtue of consistency in legislation. I beg leave to withdraw Amendment No. 7.
Amendment, by leave, withdrawn.
§ [Amendments Nos. 8 and 9 not moved.]