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Clause 3


Mr. Richard Shepherd : I beg to move amendment No. 56, in page 2, line 10, at beginning insert--

( ) Where the Director-General believes, on reasonable grounds, that a warrant under this section is required to enable the Service to investigate a threat to national security, he may after having obtained the approval of the Solicitor General, make an application in accordance with the provisions of this section.'.

The First Deputy Chairman : With this it will be convenient to consider the following amendments :

No. 58, in page 2, line 11, leave out the Secretary of State' and insert

an order of a Judge of the High Court upon application by the Service'.

No. 94, in page 2, line 12, at end insert

but this section shall not exclude an application to court for a judicial review of the reasons for the issue of the warrant and the consequent actions'.

No. 59, in page 2, line 13, leave out subsections (2) to (7) and insert--

(2) An application to a judge for a warrant under subsection (1) shall be made ex parte in writing and be accompanied by an affidavit of the applicant deposing to the following matters, namely-- (

(a) the facts relied upon to justify the belief, on reasonable grounds, that a warrant under this section is required to enable the Service to obtain information which is likely to be of substantial value in assisting the Service to discharge its functions ; (

(b) that other investigative procedures have been tried and have failed or why it appears that they are unlikely to succeed, that the urgency of the matter is such that it would be impractical to carry out the investigation using only other investigative procedures ; (

(c) the type of information, records, documents or things proposed to be obtained and the powers referred to in paragraphs (a) to (c) of subsection (3) below proposed to be exercised for that purpose ; (

(d) the identity of the person, if known, who has possession of the information, record, document or thing proposed to be obtained ; (

(e) the persons or class of persons to whom the warrant is proposed to be directed ;

(f) a general description of the place where the warrant is proposed to be executed, if a general description of that place can be given ;

(g) the period, not exceeding sixty days or six months, as the case may be, for which the warrant is requested to be in force that is applicable by virtue of subsection (5) ; and

(h) any previous application made in relation to a person identified in the affidavit pursuant to paragraph (d), the date on which such application was made, the name of the judge to whom each such application was made and the decision of the judge thereon. (3) Notwithstanding any other law, where the judge to whom an application under subsection (1) is made is satisfied of the matters referred to in paragraphs (a) and (b) of subsection (2) set out in the affidavit accompanying the application, the judge may issue a warrant authorising the persons to whom it is directed to obtain any information, record, document or thing and, for that purpose, (a) to enter any place or open or obtain access to any thing ; (b) to search for, remove or return, or examine, take extracts from or make copies of or record in any other manner the information, record, document or thing ; or

(c) to install, maintain or remove any thing.

(4) There shall be specified in a warrant issued under subsection (3)--

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(a) the type of information, records, documents or things authorised to be obtained and the powers referred to in paragraphs (3)(a) to (c) authorised to be exercised for that purpose ; (b) the identity of the person, if known, who has possession of the information, record, document or thing to be obtained ; (c) the person or classes of persons to whom the warrant is directed ;

(d) a general description of the place where the warrant may be executed, if a general description of that place can be given ; (e) the period for which the warrant is in force ; and (f) such terms and conditions as the judge considers advisable in the public interest.

(5) A warrant shall not be issued under subsection (3) for a period exceeding--

(a) sixty days where the warrant is issued to enable the Service to investigate a threat to national security within the meaning of paragraph (d) of the definition of that expression in subsection (2) of section 1 ; or

(b) six months in any other case.

(6) On application in writing to a judge for the renewal of a warrant issued under subsection (3) made by a person entitled to apply for such a warrant after having obtained the approval of the Solicitor General, the judge may, from time to time, renew the warrant for a period not exceeding the period for which the warrant may be issued pursuant to subsection (5) if satisfied by evidence on oath that

(a) the warrant continues to be required to enable the Service to investigate a threat to national security ; and

(b) any of the matters referred to in paragraph (b) of subsection (2) are applicable in the circumstances.

(7) The Director-General shall be under a duty--

(a) to apply in writing to a judge requesting the cancellation of a warrant at any time when he reasonably believes that the action authorised is no longer necessary ;

(b) to destroy forthwith any information, record, document or thing obtained as a result of the exercise of the warrant and which does not relate to the individual named in the warrant ;

(c) to destroy forthwith any information, record, document or thing which proves to be irrelevant to the investigation for the purposes of which the warrant is issued.

(8) An application under subsection (1) to a judge for a warrant or a renewal of a warrant shall be heard in private.

(9) The Solicitor General may make regulations--

(a) prescribing the forms of warrants that may be issued under subsection (3) ;

(b) governing the practice and procedure of, and security requirements applicable to, hearings of applications for such warrants and for renewals of such warrants ; and

(c) notwithstanding the Rules of the Supreme Court 1965 as amended, specifying the places where such hearings may be held and the places where, and the manner in which, records or documents concerning such hearings shall be kept.'.

No. 95, in page 2, leave out lines 29 to 32 and insert by a Minister in his Department'.

Mr. Shepherd : Amendments Nos. 56, 58 and 59 relate to the judicial issuing of warrants. An integral part of the scheme to give the checks and balances that are needed in the Bill was a requirement that warrants be issued by a judge. The amendments set out the terms and conditions under which the warrants would be issued. I am mindful that hon. Members are becoming impatient, but it is an essential concept that it should not be an arbitrary power, albeit that it is laid down in statute--if that is not a contradiction in terms--that determines that a warrant be issued.

Under the arrangements that we were seeking to make in the Bill to give the checks and balances which we hoped

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would make the Bill conform to the democratic requirements, it was necessary for the director-general of the Security Service to seek the permission of the Home Secretary or the responsible Minister who would authorise the application for a warrant. The director-general of the Security Service would then apply to a judge and these criteria would have to be satisfied. The omission from the Government scheme is that the issuing of a warrant will not be subject to any judicial authority. It will be solely an administrative decision taken by the Executive, and that is worrying.

I know that the Government are well aware that this is contrary to the principle recommended by the Royal Commission on criminal procedure, that a person who is to be the subject of, for example, electronic surveillance should have his interests represented by the Official Solicitor or a similar body at a hearing prior to authorisation by a judicial authority. I am not certain whether that could be accommodated. I am also worried that the procedure is contrary to the procedures adopted by the United States and most European countries. Our amendments reflect what the Home Secretary referred to as the Canadian cloth. It is worrying lest a questionable practice is being included in the Bill, following the European Court judgment in Klass v. Federal Republic of Germany, which questioned "whether an administrative decision without judicial authority would meet the court's requirement of independence in a field where abuse is potentially so easy in individual cases and could have such harmful consequences for democratic society as a whole'."

10.30 pm

I will not delay the Committee by going through each part of the amendment. It is designed to ensure that the rule of law prevails--that the Executive is subject to a degree of independent scrutiny from the judiciary and that the actions of the judiciary in a narrowly defined way are subject to those tests.

That is an important principle of our system of government, but in the Bill it is done away with for a number of things. The worry is that now that we have no definition of "national security" we are in the position, as we have said when debating earlier amendments, that, whatever the Home Secretary says is national security, it now becomes a lawful basis on which to enter premises.

Thus, the criterion that we were seeking--a definition of "national security"--is not available for a judge to endorse when granting a warrant. Our purpose is to try, at each stage of the Bill, to ensure the continued democratic values and protections of society. That comes down to ministerial responsibility, with the services being respon-sible to Ministers.

A judicial review of these aspects is necessary, for without those protections none of us can be free people. Otherwise it means the arbitrary power of the Home Secretary determining what he perceives to be a threat to national security, perhaps on the advice of the security services, and that could be the object of the scrutiny of the state through the surveillance of or entry on to premises. There is no safeguard of this judicial intervention.

That was the reason for having, in addition, independent oversight, plus the Government's proposed commissioner or what we would have described under other amendments as the inspector-general. That would

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have put all the necessary forms in place, with an

inspector-general to review the warrants after they were issued to ensure that the purposes, duties and intent of the warrants were met by the Security Service in the execution of the warrants. In addition, those warrants could be scrutinised by an independent review committee comprised of, we suggest, Privy Councillors who could be within or without the House. That was designed to meet the anxieties of many hon. Members on these Benches who fear that genuine Security Service matters could suffer were there to be any extension of what is called the circle of secrecy.

We do not see how this can be a reasonable Bill without there being some judicial oversight to ensure that the warrant that is issued conforms with the functions, needs and tasks of the Security Service.

Mr. Cryer : I endorse the comments of the hon. Member for Aldridge- Brownhills (Mr. Shepherd), who will agree that the amendments standing in my name, Nos. 94 and 95, are simpler than his. After the opening words of clause 3 :

"No entry on or interference with property shall be unlawful if it is authorised by a warrant issued by the Secretary of State under this section"

my amendment No. 94 would add :

"but this section shall not exclude an application to court for a judicial review of the reasons for the issue of the warrant and the consequent actions.".

It appears very final for the House to say to anyone, including a Minister, that he can interfere with property through burglary, which is normally a serious criminal offence, albeit on the understanding that members of the security services are trying to protect us from terrorism or in the interests of national security, although that is very loosely defined. It could be in the interests of protecting the Prime Minister's reputation or position. Such wide definitions are possible under the terms of the Bill.

This is a serious matter. People will be burgled unjustly and mistakenly. The security services contain people who will be less than effective. We have already heard about the way in which Michael Bettaney was selected at a time when he was drinking a bottle of whisky a day. The security services people operate in a twilight world. They cannot say around the table what they do. They cannot say, when the brown Windsor soup and other courses are out of the way, "I work for the security services and our work is very interesting." It is not that sort of job. They have to be secretive and, at some stage, they must deceive a number of people by lying about their occupation. That places stress and strain on them and can produce fumbled judgments and mistaken decisions. As a consequence, they can burgle people mistakenly and, in pursuit of such burglaries, possibly injure or harm people to cover up their operations.

It is therefore reasonable that we should not be prepared to say that, simply because a warrant has been issued, there can be no challenge and that nothing done in pursuance of the issue of that warrant is unlawful. That is quite outrageous. My first amendment does not exclude the possibility of a judicial review of

"the reasons for the issue of the warrant and the consequent actions".

The Minister may say that we must give absolute sanctions to the people who carry out the duties laid down in the warrant. Under the Bill, the commissioner will be a senior member of the judiciary. The Minister may say that the

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Government place great store by members of the judiciary and, if the Government place great store by them, why should not the ordinary citizen do so if he feels aggrieved and has direct access to the courts, irrespective of the complaints procedure established in the Bill?

My second amendment states that a warrant shall not be issued except under the hand of the Secretary of State. There is a confused jumble in which a warrant can be issued when the Secretary of State says that it is all right to do so. It is endorsed by him and can be issued under the hand of an official of his Department.

Too much work is given to Secretaries of State. We appoint junior Ministers and there is in every Department, particularly the Home Department, a junior Minister on duty when the Secretary of State is out of the country. We should not hand such a duty to an official, no matter how senior. The proposal in the Bill presents difficulties and possibilities for misinterpretations. My amendment simply states that a warrant shall be issued under the hand of the Secretary of State or a Minister in his Department. It will be clear that, when the Secretary of State has gone off to some conference of Common Market Home Office Ministers and their equivalents, the junior Minister who is in charge will be given the task of authorising warrants. I know that it is unusual for junior Ministers to be given important jobs, but junior Ministers are appointed and are part of the Government. When they make mistakes they are accountable, and sometimes the Government are embarrassed by their errors and discreetly get rid of them, so a junior Minister would be responsible for making sensible decisions. After all, junior Ministers sit in the House, and it would be wrong in principle if the Government, in producing the legislation, were prepared to hand over a very important task to a senior official "of or above Grade 3"--a description which smacks of "Brave New World".

My amendment No. 95 simply places an obligation on the elected Government Ministers of the day to carry out the duty which they consider to be so important. I hope that my modest attempts to improve the Bill--which I do not like very much--will lead the Minister to recognise the attempts by the Committee to improve the degree of accountability and accept the amendments. That would save the time of the Committee.

Mr. Aitken : I support the amendment so ably moved by my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd). I support the principle that he enunciated of the desirability of having the judiciary rather than the Home Secretary in charge of the warrants. I shall not develop the same theme, because, given my views on the possible lack of infallibility of the Secretary of State, it is obvious that I should support it.

I wish to develop the argument that was touched on by the hon. Member for Bradford, South (Mr. Cryer) relating to the issue of warrants by the Secretary of State. We already know that my right hon. Friend the Home Secretary and my hon. Friend the Minister of State have the strictest possible instructions not to make any concessions towards accepting any amendment so that the dreaded thought of a Report stage must be avoided at all costs. No matter how badly the Bill is drafted or how awful a dent is being made in our civil liberties, no amendments are to be conceded. However, I think that I have found a

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classic example of how MI5, the drafters of the Bill, have shot themselves in the foot disastrously and will have to amend the Bill. Clause 3(3) deals with the issuing of a warrant. It states : "A warrant shall not be issued under this section except (a) under the hand of the Secretary of State : or

(b) in an urgent case where the Secretary of State has expressly authorised its issue".

Presumably, when the Secretary of State is in the north of Scotland, he can authorise a warrant by telephone and an official in his Deprtment can sign it.

The problem is that that scenario concentrates all warrant authorisation by signature or on the telephone exclusively and entirely in the hands of the Secretary of State. That is unworkable as there will be many occasions when the security services need a warrant quite quickly and the Secretary of State is unobtainable. For example, I understand that the Secretary of State is to visit the kingdom of Saudi Arabia. It is a semi-official visit, but knowing something of the hospitality there, I have no doubt that his schedule will include some up-country trips, perhaps a spot of falconry in the desert or some camping miles away from telephones or possible communication with the office in London. There could be many such occasions in the Secretary of State's life. He could be on holiday, swimming in the sea out of range of a telephone, or he could be ill or incapacitated.

Mr. Maclennan : I wish that I could believe that the hon. Member for Thanet, South (Mr. Aitken) has discovered such a flaw, but it is a canon of statutory interpretation that use of the phrase "Secretary of State" does not confine itself to any particular Secretary of State. If, as he suggests, the Secretary of State for the Home Department is unavailable, the Bill empowers the Secretary of State for the Environment or the Secretary of State for Scotland, or another, to fulfil the task.

10.45 pm

Mr. Aitken : I know that that has been past practice. It is well known that, when seeking warrants, the security services have often called upon what might be called the weakest link in the chain--the Minister of Agriculture, Fisheries and Food, or the Secretary of State with responsibility for drains, as being the last man in Whitehall on a Friday afternoon, because he does not have a clue about what goes on and can be counted on briskly to sign the authorisation.

Mr. Allason : I cannot believe that other Secretaries of State are authorised to sign warrants. In the past, and under the Interception of Communications Act 1985, it has been the practice to identify the Secretary of State for the Home Department. It will be improper if other Secretaries of State, who are not aware of the background, consider the detailed submissions that must be made to obtain a warrant.

Mr. Aitken : No doubt the Minister will elucidate that point, but the Bill appears to give no scope for any person other than the Secretary of State for the Home Department, to whom the Bill refers throughout as the Home Secretary, and who is responsible for oversight and monitoring supervision, to sign warrants.

I am baffled by the notion that the Secretary of State for the Home Department will not, in any circumstances, take a day off. If that is so-- and clause 3(3) reads that way--it reveals a defect in the arrangements. Clearly, although

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the Home Secretary has summoned up for himself amazing powers of oversight and monitoring, he cannot be everlastingly omnipresent and eternally vigilant so as to authorise warrants.

I suggest that an amendment must be made to allow Secretaries of State--in the plural--to authorise warrants. It would be preferable if the judiciary, who are plural, did so. I hope that the point made by the hon. Member for Caithness and Sutherland (Mr. Maclennan) concerning the canon of interpretation is not valid. As I read the Bill, it contains a defect, and the provision for issuing warrants will have to be amended.

Mr. Menzies Campbell (Fife, North-East) : I wish to speak briefly in support of amendments Nos. 56, 58 and 59, which were eloquently and persuasively spoken to by the hon. Member for Aldridge-Brownhills (Mr. Shepherd). However, I do so with reservations, because amendment No. 58 refers to

"an order of a Judge of the High Court",

which I interpret to mean an English High Court judge.

We have within the United Kingdom one other separate legal jurisdiction. In circumstances in which an application relating to Scotland is made by the Solicitor-General--leaving aside the question of whether or not it should be the Solicitor-General for Scotland--it is only right and proper that it should be made to a judge within the Scottish jurisdiction ; whether of the Court of Session or of the High Court of Justiciary is something we need not debate this evening. That can easily be corrected at a later stage in the Bill's progress.

We are concerned with a matter of principle. Where the innovation of one's personal rights, whether in respect of liberty of property, is to be justified by the issuing of warrants, it is only right and proper that the warrant by which such enervation takes place should be issued by a source that can have no interest in the consequential outcome. Judges, for all their faults, have long been more effective guardians of the freedom of United Kingdom citizens. It was not a Secretary of State who said :

"Be you ever so high the law is above you."

Had we had to rely on Secretaries of State to protect our personal liberties, I suspect that those personal liberties would have been in a far less effective and vibrant condition than they are today.

Mr. Buchan : I believe that the interpretation of the hon. Member for Caithness and Sutherland (Mr. Maclennan) was right : normally "the Secretary of State" means "any Secretary of State", which is even more appalling. The element of secrecy surrounding the Bill, and the fact that there is no scrutiny Committee with any public responsibility or accountability, but that all is left in the hands of the Home Secretary-- who may be missing--and the Prime Minister, mean that if the one person who is being reported to in any detail on the workings of the Security Service is missing, an entirely unknown Secretary of State, for example, the Minister of Agriculture, may sign the warrant.

Mr. Aitken : I am fascinated by all the constitutional experts who are popping up on the Opposition Benches. Perhaps the hon. Gentleman will clarify the matter a little further. If the words "the Secretary of State" can mean "any Secretary of State", does that apply throughout the

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Bill? Can the director-general be appointed by any Secretary of State, or the monitoring be done by any Secretary of State? Are all Secretaries of State transferable?

Mr. Buchan : I think that legally the short answer is yes. The practical, empirical answer is of course no, but I think that that is the case unless it is written into the appropriate clause that the Secretary of State referred to is the Home Secretary or the Secretary of State for Scotland. That is very common : agriculture Bills tend to refer to the Minister of Agriculture and the Secretary of State for Scotland. If that definition is not given, what I have described could happen.

Whether it happens or not, however, the position remains serious. We said yesterday that the whole apparatus of grim secrecy will be left in the hands of only one accountable person in Parliament--the Home Secretary, reporting to the Prime Minister. The director-general, and his position in relation to the Home Secretary, makes the thing even more private, even more secret and even more dangerous. It would be better if the wording were clarified, but of course the Government do not want to clarify it now. Many defects have been pointed out in the past two days, but the Government have dodged them all. Earlier this evening we saw an astonishing phenomenon whereby Conservative Members accepted the main burden of the argument put forward in the form of a statement by the Home Secretary, but there was no offer to bring it into legislation. They are afraid of the tiniest amendment because they do not want to come back to the Bill on Report, when more thought could be given to it.

Mr. Cryer : What my hon. Friend has said suggests that any Secretary of State can ring up an official and say, "I expressly authorise a warrant." The official jots it down and then simply says, "The Minister of Agriculture happened to ring this morning and issued a warrant, which I endorse under my hand", and that fulfils the purpose of subsection (3)(b).

Mr. Buchan : In some circumstances I think that that could be the legislative and technical position, but we shall find out shortly from the Dispatch Box. In practical terms it would not be the case, because there would already be a working arrangement between the Secretary of State, that curious group of people MI5, and the various ancillaries.

Of course, it would be better if the matter were in the hands of a judge-- if the judiciary in one form or another had given its imprimatur. But do not let us be too confident about that either. It was a head under a wig that made that infamous declaration in the Ponting case that the interests of the state were synonymous with those of the Government of the day. Incidentally, it is a terrible indictment of parliamentary democracy that we must lean on judges rather than on this place to try to save our democracy and freedom, and I understand why hon. Members say that accountability should be secured by a Committee of the House. It was, for example, a judge--the Lord Advocate--who signed the warrant to allow the invasion of the Scottish BBC, over the Zircon case--another entirely unnecessary and dangerous invasion of our freedoms.

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Mr. Menzies Campbell : Perhaps the hon. Gentleman will recall that the Lord Advocate was a Minister, but it was a Scottish judge who regarded the first warrant as incompetent and reduced it.

Mr. Buchan : I withdraw what I said. The hon. and learned Gentleman is absolutely right. The judge rejected it as being a portmanteau warrant and therefore improper.

I believe that the amendments put forward by two Conservative Members and supported by members of the SDP--or whatever strange name they call themselves nowadays--should be supported. It takes a lot for me to say that. The Government knew they were wrong throughout the debates yesterday and today. It was clear they knew they were wrong. They did not seem prepared to make the slightest amendment. Have some courage. Say yes.

Mr. Harry Cohen (Leyton) : I shall be brief as I do not wish to delay the Committee too much longer. I raised this issue on Second Reading, but the Minister did not respond. I want to give him a chance to do so because it raises serious implications. As we are discussing warrants, there is an opportunity legitimately to raise this matter. Under this legislation there will be warrants authorising breaking and entering and burglary, allegedly in the interests of the state. Under the Bill, burglary would become legal. In those circumstances, what I described on Second Reading as the "Hilda Murrell" implications arise. We should have some answers from the Minister about those implications.

What if the home-owner comes home and finds the warranted burglar, for want of a better word--it might not even be an MI5 man in these days of privatisation, as the job might have been contracted out to somebody--in his or her home and resists? That is not a hypothetical question. When people find burglars in their home they tend to resist. Many people put up a fight in defence of their property. What orders will the warranted burglar or MI5 man have in those circumstances? Can the Minister tell us? What will the MI5 man say in those circumstances? It is an important point and it has further implications. Ordinary burglars who are not MI5 men might say, if caught in the act, "I am doing it for MI5." What is the situation? What if the warranted burglar assaults the home-owner? Will he be subject to prosecution? Will the police have a role, or will they be told that they have to cover up for MI5 because it is secret and in the national interest? If the home-owner is injured, will he be eligible to claim compensation? In general, if home-owners are hurt they can claim from the Criminal Injuries Compensation Board. How will a home-owner go about seeking compensation in these circumstances? What if the home-owner assaults the warranted intruder? Will the home-owner then be prosecuted? Will he be punished or will he be left not knowing what is going on, perhaps waiting in fear for some sort of revenge from the burglar because he got the best of the issue?

What will happen in such cases? The ensuing struggle might result in murder. What happens if the warranted burglar--the MI5 man--murders the home-owner? Will the matter ever come to court? Will it ever come out into the open? What will happen in those circumstances?

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