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issued by the Secretary of State under this section'.
in so far as they relate solely to the protection of national security and the economic well-being of the United Kingdom'. No. 34, in page 4, line 12, after above', insert
which are exercised in pursuance of the objectives mentioned in subsection 2(a) and (b) of that section'.
No. 35, in page 4, line 14, after above', insert
which are exercised in pursuance of the objectives mentioned in section 3(2)(a) and (b) above'.
No. 36, in page 4, line 22, at end insert
( ) A judge of the High Court or Court of Session may, on an application made by the Security Service, the Intelligence Service or GCHQ, issue a warrant under this section authorising the taking, subject to subsection (3) below, of such action as is specified in the warrant in respect of any property so specified or in respect of wireless telegraphy so specified if he
(a) thinks it necessary for the action to be taken on the ground that it is likely to be of substantial value in assisting, as the case may be,
(i) the Security Service in carrying out any of its functions under the 1989 Act in so far as they relate solely to the prevention and detection of serious crime, or
(ii) the Intelligence Service in carrying out any of its functions under section 1 above which are exercised in pursuance of the objectives mentioned in subsection (2)(c) of that section ; or (iii) GCHQ in carrying out any function which falls within section 3(1)(a) above which are exercised in pursuance of the objectives mentioned in section 3(2)(c) above ; and
(b) is satisfied that what the action seeks to achieve cannot reasonably be achieved by other means ; and
(c) is satisfied that satisfactory arrangements are in force under section 2(2)(a) of the 1989 Act (duties of the Director-General of the Security Service), section 2(2)(a) above or section 4(2)(a) above with respect to the disclosure of information obtained by virtue of this section and that any information obtained under the warrant will be subject to those arrangements.'.
No. 18, in clause 6, page 4, line 40, leave out from beginning to end of line 9 on page 5 and insert
(1) A warrant shall, unless renewed, cease to have effect at the end of the period of six months beginning with the day on which it was issued.
(2) An application for a warrant from a court shall be heard ex parte.
(3) If at any time the Security Service, the Intelligence Service or GCHQ is satisfied that the action authorised by the warrant is no longer necessary it shall apply to the Court or the Secretary of State as appropriate for the warrant to be cancelled'.
Mrs. Prentice : Clause 5 provides for the Secretary of State to issue--on an application by the Security Service, Secret Intelligence Service or GCHQ--warrants authorising action in respect of property or wireless telegraphy. We believe that it is not appropriate for the Secretary of State to be the arbiter in the issuing of warrants. I served as a magistrate in Inner London for many years, and was called upon from time to time by the Metropolitan police to issue search warrants. Such requests were made in court or at my own home, sometimes late at night. There have been occasions when the validity of warrants signed by magistrates has been called into question.
Column 312The rules were changed to ensure that warrants authorised by magistrates are properly signed and record the correct time to ensure that the police or others do not misuse that procedure. That is done not just to protect the person against whom the warrant is issued but to safeguard the prosecution. There is nothing worse than for a case to fail because a warrant was not properly signed or other technicalities were not correctly observed. I have great sympathy with anyone who is required to sign a warrant and to ensure that it is fully justified.
The suggestion that the Secretary of State should sign warrants causes me concern. That Minister is involved in the activities of the security services, so cannot be considered independent of them, and an adequate check on the warrant is essential. In constitutional terms, any Secretary of State--and this is a non-party political point--is part of the Executive in the same way as the Security Service.
In criminal cases, warrants are generally authorised by a magistrate before a search of someone's house is lawful. Often, that authorisation is done in open court. It is rare, rightly, for a warrant to be authorised elsewhere. Right hon. and hon. Members and people outside might think that a judge is not necessarily the best person to authorise a warrant, because it is too sensitive a task ; that judges have their own views of society and may be prejudiced by them. However, there are examples of the courts being charged with dealing with matters of secrecy reasonably well. The judge in the Matrix Churchill case was able to examine sensitive material and to ensure that it was properly adjudicated.
Mr. Douglas Hogg : There may be some misunderstanding. I have carefully examined the amendments, and it is clear that they relate only to those applications that are founded on the serious crime category, and that it is only in respect of that category that it is suggested by the amendments that the warrant should be issued by a judge. They do not relate to the other two classes.
Mrs. Prentice : I am trying to make the point, in relation to the principle behind the issuing of warrants, that it is questionable whether a politician who is part of the Executive is necessarily the appropriate person to make warrants available.
"the prevention of detection of serious crime."
That is the generic clause covering the issuing of warrants. Amendment No. 15 seeks to delete from clause 5(1) the words "issued by the Secretary of State under this section."
Mr. Douglas Hogg : On a point of order, Mr. Deputy Speaker. I do not want to be tiresome because we can always debate the principle, but the amendments relate only to applications in respect of serious crime. I am prepared to debate the generality, but I am faced with a narrow class of amendments and it would be a pity if there were any misunderstanding.
Mr. Deputy Speaker : Unfortunately, I allowed the hon. Gentleman to continue a debate across the Floor of the House with the Minister. If the hon. Gentleman has a point of order, he must make it now, to the Chair.
Mr. Rogers : My purpose is to bring the debate in order, because the Minister suggested that our amendments apply only to a particular aspect of the Bill. My point of order is that our amendments do not relate solely to clause 5(3)--which begins,
"A warrant authorising the taking of action in support of the prevention or detection of serious crime"
but to the end of clause 5, where we seek to insert a new subsection beginning :
"A judge of the High Court or Court of Session".
As amendment No. 15 seeks to delete from clause 5(1) the words "issued by the Secretary of State under this section",
it was necessary to introduce later in clause 5 the provision for a warrant to be issued by a High Court or Court of Session judge.
One of the fundamental principles of human rights is respect for the rule of law, and I am concerned that that principle should be set out in the Bill. It was argued in Committee that if someone objected to the issuing of a warrant, he could go to a tribunal. Unfortunately, that does not satisfy the fundamental human rights with which I am concerned. It is important that the individual is aware before a tribunal is involved that he can challenge what is happening. Once he appears before a tribunal, the warrant has been issued and the telephone tapping or other surveillance has taken place. At that stage it is difficult to put things right.
If we allow the Secretary of State to issue warrants to authorise various actions, we shall fall short of the provisions set out in article 6 of the European convention on human rights. If we are signatories to the convention, we should make some attempt to go along with its provisions. As I have said, the courts are capable of dealing with matters of secrecy.
Some of my right hon. and hon. Friends say that the judges are political in a sense and may make decisions accordingly. Indeed, they have made some incredibly bad decisions. A Labour Government would entrench human rights ; they would introduce a Bill of Rights. I would like to see a written constitution to entrench the rights of individual citizens. The judges would have to comply with it, and that would make a great difference. I look to the future to see that system apply rather than the present one.
If we leave appeal until the time when the tribunal is involved, there is no possible redress. That means that the complainant will have no access to information and will not know why he is in some way threatening national security. The tribunal can decide only whether the service has reasonable grounds for its actions. There will not be an adequate check on the Secretary of State when it comes to the decision to issue a warrant. That is why we feel that going before a High Court judge and ensuring that
Column 314decisions are made in open court will protect the individual citizen as well as protecting the security services by ensuring that they have proper means whereby they can continue with acts that would otherwise be illegal.
We are talking of acts that would be unlawful without the support of a warrant. That is crucial to our consideration of these matters. If we allow people to participate in unlawful acts for the very best of reasons-- national security--we must be sure that they do so under the strictest provisions. It is for these reasons that I commend the amendment to the House.
Mr. Richard Shepherd : I do not know whether the amendments are correctly drawn and I am happy to accept the advice of my right hon. and learned Friend the Minister of State on that matter. All the matters that we are considering can be corrected when the Bill returns to the other place. My right hon. and learned Friend can give an undertaking that they will be addressed there.
It is unthinkable that warrants should not be issued and authorised by a judge. That is the first principle. It is outrageous to think that a Minister should himself determine what should be lawful and by his own warrant attest that that which is unlawful is lawful. The structural problem is that essentially a Minister's acccountability is to himself. There should be judicial determination.
This is a land of laws. The history of England and the United Kingdom is built on those laws, and in those laws we find our defence. Judicial intervention is proper and appropriate. We talk about the security of individuals and whether they are to be trusted. The very people who we regard dubiously today may be Ministers of the Crown tomorrow. The man on the Opposition Benches who we suspect may be the very Foreign Secretary who issues the warrants that we are discussing. We must not be so suspicious of ourselves internally that we exclude a great democracy. After all, these systems are designed to defend our democracy.
Part of our democracy and defence is through the courts, where there is an independent judiciary. That is why it is entirely respectable to argue that there should be judicial intervention and that warrants should be issued on the authority of a justice of this land, commissioned by the Queen, due process and so on. If that is not the position, everything in the Bill will be at the behest of the Government of the day alone.
As things stand, the Government appoint everyone in the system. They appoint the commissioner and they appoint the committee of parliamentarians. I do not, of course, want to give the impression that these matters are related. I recognise that they work in their own way, but they do not reinforce accountability and identify responsibility. That is why it is important that these processes should be open to the courts. It may be that the courts will find a way of entering the arena, but the relevant provisions are closely drafted. I would like to think that such a distinguished lawyer as my right hon. and learned Friend would appreciate the merits of the courts.
I understand that there are difficulties, one of which is Matrix Churchill. Judges seem to be far too independent and sometimes rather inquiring. But that is what we want them to be, and that is their function. If we cannot trust the judges, who do we trust in this system ? We need a balance. Not everything should be in the hands of the Executive and of one-party government. That is why we talk about
Column 315accountable government. It is important to recognise the judicial tradition. As I have said, this is a land of laws, and within those laws we find our freedoms.
I know that my right hon. and learned Friend will appreciate what I am saying. I am sure that he has charged people for giving similar advice in his time. I hope that he will accept the spirit behind the amendments and ensure that in the other place--no less a place--there is recognition of the validity of the argument.
It was reported in The Guardian on 1 April--I hope that it was not an April Fool's joke--that the Home Secretary had authorised 883 telephone tapping warrants and that the Secretary of State for Scotland had issued 112. Apparently, the Home Secretary had authorised 105 mail openings and the Secretary of State for Scotland had authorised one. The article did not tell us what the Foreign Secretary and the Secretary of State for Northern Ireland had authorised in respect of mail openings or telephone tapping. There was no attempt to present the broad numbers. It would be useful for the House to have that information. It would also be useful to know whether the warrants related to one person or whether one warrant related to many people. Such information would be worth having. Was there judicial authorisation for any of the warrants to which I have referred or were they all issued purely on ministerial decisions ? The warrant system is a mess. We must bear in mind the opportunity to gather information about people and retain it under the Data Protection Act 1984. The Lindop committee reported that data protection problems posed even greater problems than the systems that are maintained by the police. It recommended that
"any exemption provided . . . in the interests of national security should be strictly circumscribed"
"any necessary exemption should be granted personally by the Home Secretary."
It was suggested that we should apply the best practice from abroad, and those practices involved the judiciary. Instead we got section 27 of the Data Protection Act which enabled an exemption on national security grounds. As a result, the security services can collect information on people without the need for warrants that apply in other Acts such as the Interception of Communications Act 1985 and the Security Service Act 1989.
We have three methods of obtaining information and they all have different aspects. The security services may not like a Minister's decision. A Minister may not wish to sign a warrant. For example, the President of the Board of Trade said that he did not want to sign the public interest immunity certificate in relation to the Matrix Churchill employees. A Minister may think that there is not a good enough reason for telephone tapping or whatever. The security services can take the same action under another guise, and can do so retrospectively. They can collect the information, then get the Minister to sign a certificate under section 27 of the Data Protection Act. They can say that it was all authorised retrospectively. That cannot be done under the other Acts. The issuing of warrants for the collection of information should be brought together under one system. That system
Column 316should have judicial involvement, as has been said by my hon. Friend the Member for Lewisham, East and by the hon. Member for Aldridge-Brownhills (Mr. Shepherd). That is the purpose of the amendment. The Minister should address that, otherwise the system is a free -for-all and the security services can do what they like. The structure of oversight referred to earlier is meaningless in that context.
Mr. Douglas Hogg : I invite the Opposition not to press the amendment to a Division because I assure them that it is defective and that the only provision for judicial review of the warrant procedure relates to the serious crime category. However, I am prepared to debate the general principle, if that is in order, Mr. Deputy Speaker.
The real question before the House is whether in the three categories the warrants should be issued by the Secretary of State or by a judge. I strongly urge the House to accept that the warrants should be issued by a judge-- [Interruption.] Forgive me, I mean the Secretary of State. I was thinking of a suitable compliment to pay my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd). The warrant should be issued by the Secretary of State.
My hon. Friend the Member for Aldridge-Brownhills made an impassioned speech in favour of judicial intervention. He fails to grasp fully that this is not a judicial process. It is not a judicial process because the concepts are administrative and policy based and are not judicial. One can see if one looks at the categories involved--they can be found in clause 1(2)(a), (b) and (c)--that they are policy issues. There are the interests of national security with regard to defence and foreign policy and the interests of economic well-being. Those two categories are clearly policy issues. A judge is in no way qualified to determine policy issues of that sort. Hon. Members might say that judges are competent to consider questions of serious crime. Yes, they are. But, serious crime contemplated by this Bill extends abroad. The process envisaged in the one amendment that bites is not really a judicial process. It is an ex parte application without any consideration of the arguments or of the person who will be affected by the warrant. The amendment simply calls for a question of policy to be judged by a judge who does not have any experience in the policy areas and does not have the opportunity of hearing the person who will be affected by the warrant. It is an administrative and executive process, not a judicial process.
Mr. Richard Shepherd : Is not the argument self serving ? The House is trying to obtain proper definitions by which the judge can measure whether a warrant is appropriate. The Minister rejected proper definitions and then said that it would not be appropriate precisely because he has rejected the proper definitions. That is what I call a self-serving argument. One can get round that by properly defining the limiting clauses for which we have argued before. The judge could then intervene.
Mr. Hogg : My hon. Friend does less justice to his case than he should. The problem is one of concepts, not of definition. It is not a judicial issue. National security with reference to defence and foreign policy and economic well-being are not judicial issues.
Mr. Rogers : The issue of a warrant is a judicial process. The issue of a warrant allows someone to act outside the law. The general principles of the functions and abilities of the secret intelligence services are not in question. We are asking someone to act in a judicial capacity by issuing a warrant to allow someone to operate outside the law.
Mr. Hogg : The issue of a warrant is sometimes a judicial process and sometimes it is not. Many warrants are issued in ways other than through a judge or a magistrate. The point relates not to the issue of the warrant but to the circumstances in which the warrant can properly be issued. That is a question of policy and is not a judicial issue.
Mr. Rogers rose
A judge who is asked to issue a warrant has to be satisfied that it is in the interests of national security with regard to defence and foreign policy or in the interests of economic well-being. I have appeared before many judges during my life and very few, if any, have either the competence or expertise to deal with such matters of policy. That is not a criticism, but a statement of fact. There would be a submission made to them by officials with responsibility, drawing attention to policy issues. However, those issues are wholly outside the framework of practice and experience of judges. Checks and balances are provided in the Bill. My hon. Friend the Member for Aldridge-Brownhills may shake his head, but that is the case. For example, the Secretary of State is mightily constrained and the commissioner oversees what happens. Under the amendment, in so far as it bites at all, there is no review, no appeal, no subsequent comment and no right of representation. If one is talking about checks and balances and the preservation of human liberties, one does better under the Bill than under the amendment.
Mr. Rogers : I would happily accept the Minister's admonition that we should withdraw the amendment if I could understand why we should. I still think that our amendments are valid. I hear what he says about amendment No.36 relating only to the prevention and detection of serious crime ; it does stipulate that a warrant should be issued
"subject to subsection (3) below",
which relates to serious crime. That is not to say that the whole amendment is invalid.
I could not follow the Minister's general answer at all. He says that the issuing of warrants is not a judicial act. But the general terms and circumstances under which the secret intelligence services can operate are surely encapsulated in clause 1, and we cannot ask the Secretary of State to issue warrants to allow the services to act in quasi-executive way. The whole point of a warrant is to allow intelligence operators to act outside the law in pursuance of the provisions of clause 1.
As warrant issuing is indeed a judicial act, I cannot see why judges, not the Secretary of State, should not be allowed to issue them. The purpose of the amendments is to break the circle. The secret services are tasked by the Joint Intelligence Committee and the Secretary of State, who will then give them a warrant--in the Government's submission--to act outside the law. The services in turn report back to the same machinery of government and there is thus no true accountability.
Column 318If a High Court judge is involved in at least this one process, as the hon. Member for Aldridge-Brownhills said, an element of democracy will be introduced to the process. That is why we shall press the amendment to a Division.
Question put, That the amendment be made :
The House divided : Ayes 132, Noes 271.
Division No. 223] [8.51 pm Ainsworth, Robert (Cov'try NE) Anderson, Ms Janet (Ros'dale)
Ashdown, Rt Hon Paddy
Beith, Rt Hon A. J.
Bennett, Andrew F.
Campbell, Mrs Anne (C'bridge)
Campbell, Ronnie (Blyth V)
Campbell-Savours, D. N.
Carlile, Alexander (Montgomry)
Clarke, Eric (Midlothian)
Cook, Robin (Livingston)
Corston, Ms Jean
Cunningham, Jim (Covy SE)
Cunningham, Rt Hon Dr John
Davies, Bryan (Oldham C'tral)
Davis, Terry (B'ham, H'dge H'l)
Foster, Rt Hon Derek
Foster, Don (Bath)
Gilbert, Rt Hon Dr John
Godman, Dr Norman A.
Grant, Bernie (Tottenham)
Griffiths, Nigel (Edinburgh S)
Griffiths, Win (Bridgend)
Hogg, Norman (Cumbernauld)
Home Robertson, John
Howells, Dr. Kim (Pontypridd)
Hughes, Kevin (Doncaster N)
Jones, Ieuan Wyn (Ynys Mo n)
Jones, Nigel (Cheltenham)
Kennedy, Jane (Lpool Brdgn)
Lloyd, Tony (Stretford)
Lynne, Ms Liz
Maddock, Mrs Diana
Marshall, Jim (Leicester, S)
Martin, Michael J. (Springburn)
Morris, Estelle (B'ham Yardley)
O'Brien, Michael (N W'kshire)
O'Brien, William (Normanton)
Pike, Peter L.
Powell, Ray (Ogmore)
Prentice, Ms Bridget (Lew'm E)
Prentice, Gordon (Pendle)
Robertson, George (Hamilton)
Sheldon, Rt Hon Robert
Shore, Rt Hon Peter
Smith, C. (Isl'ton S & F'sbury)
Smith, Llew (Blaenau Gwent)
Squire, Rachel (Dunfermline W)
Strang, Dr. Gavin
Wardell, Gareth (Gower)
Wareing, Robert N
Williams, Alan W (Carmarthen)
Young, David (Bolton SE)
Tellers for the Ayes :
Mr. John Cummings and
Mr. Eric Illsley.