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Mr. Dalyell: The combination of the Minister's mention of rare circumstances and his mention of Customs and Excise requires me to ask him to forgive my curiosity. On Saturday night, there was a detailed description of Sir Brian Unwin's astonishment when he was called by the Cabinet Secretary to a meeting, with other permanent secretaries, on the unmentionable subject--I should be ruled out of order if I went into Scott. However, that combination raises the question of the relationship between Customs and Excise and the security services, because, when asked, the Cabinet Secretary is reported to have said, "It is perfectly normal for Customs and Excise to be consulted." When Sir Brian Unwin was asked, he said, "It is the first time that I have ever been summoned to a meeting by a Cabinet Secretary." Could some light be shed on the fascinating subject of what that relationship is?
Mr. Maclean: Certainly not by me, but no doubt someone will write a book about it one day. It may be an interesting subject, but it is irrelevant to the point that has been made in the debate. The hon. Member for Cardiff, South and Penarth has moved a reasonable amendment, which seeks to provide greater detail. I have pointed out that it would be slightly dangerous to go into that detail.
Mr. Rowlands: In Committee, the Minister made the key statement that the NCIS
- "will inform the chief constables that NCIS has been tasked".--[Official Report, Standing Committee A, 1 February 1996; c. 67.]
Mr. Maclean: I mean, in the real sense. The hon. Gentleman should bear it in mind that the requests come from the police service in the first place. It is going to the NCIS. If the NCIS should determine through its machinery that there is a tasking requirement that involves the Security Service, in general it is inconceivable that the chief constables who made the request for assistance in the first place will not be properly informed that the service is operating. However, I built in the caveat that there might be some circumstances in which it would be logistically impossible or not sensible to inform chief constables that the Security Service was, for example, passing through their area.
I respect the intentions of the amendment moved by the hon. Member for Cardiff, South and Penarth. It seeks more clarity. The only danger is that it is slightly more detailed and would allow lawyers to dance on a pinhead. The hon. Gentleman said that that was also his fear.For those reasons, I cannot accept the amendment.
Mr. Michael:
I am grateful to the Minister for his reply. He has helped the House by expressing the Government's level of clarity in relation to what is intended by the Bill.
The point raised by my hon. Friend the Member for Merthyr Tydfil and Rhymney (Mr. Rowlands) is very important. The discussion about what information should be available to chief constables was assisted by the Minister saying that, when there was a surveillance operation that went up a motorway through several police areas, one would obviously not expect information to be provided to each chief constable whose area was involved in the operation. However, one would expect that in the normal course of events chief constables would be aware of the operations in their areas. The intention is that the chief constable designate would agree such an arrangement with the head of the intelligence service. Therefore, I think that the House's intentions are clear.
My hon. Friend the Member for Linlithgow(Mr. Dalyell) put his finger on an issue to which the House needs to return, because it goes outside the scope of the Bill. The issue is the expanding role of officers of Customs and Excise, which has recently expanded without the scrutiny of the House.
Mr. Dalyell:
I must be extremely scrupulous about the facts on that issue. I was referring to a reconstruction that may or may not be factual, as put forward by Channel 4 on Saturday night. I do not know that Sir Brian Unwin said any such thing. The point is that he is purported and reported to have said it. If he did say it, it raises extremely interesting questions--does it not, Home Secretary?
Mr. Michael:
I was not referring to reconstructions on television or anywhere else. I was referring to the accountability, intentions and expansion of Customs and Excise, which is an issue that came out of our discussions in Committee. At an appropriate time, I believe that the House should pay attention to that issue.
As for the amendment, it is clear, as I understand it--I am certain that the Minister will tell me if I am wrong--that our intentions in moving it are shared by him and that they reflect the intentions of the House. In the light of that, my intention is not to seek to write it into the Bill, but that the debate should have helped to clarify the House's intentions. In the light of the Minister's encouraging and helpful response to the points that we raised, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Beith:
I beg to move amendment No. 1, in page 2, leave out lines 23 and 24 and insert--
Amendment No. 1 relates to one of the two remaining problems with the Bill which I said have not yet been solved and it is causes particular anxiety to serving police officers. It is the fact that the Security Service will be able to use the warrant powers that it has under section 5 of the Intelligence Services Act 1994 in relation to its new function of assisting the police in the pursuit of organised crime. Police officers do not have such powers, and more than one chief constable has told me that he is very unhappy about the Security Service being given powers in relation to organised crime that the police do not have.
The paradox is that, at least when the Security Service uses its powers to carry out its existing function, some safeguards are operative. If the police act in a similar way, as they have felt obliged to do over the years, they have neither proper legal powers nor a system to safeguard the public to ensure that the powers are not abused.
The problem arises primarily in relation to eavesdropping on, or interference with, property which officers need to enter to carry out their operation.Of course, it does not arise with the interception of telephones. Indeed, in a way, the system of telephone interception is a better model because, although the system has its critics, there is a parallel system operating for the police and the Security Service. However, the absence of a privacy law in this country means that various types of eavesdropping--those that do not involve entering a property--may not be illegal at all. In other words, anyone--not just the Security Service or the police--could eavesdrop for any purpose. That is a very unsatisfactory state of affairs which needs to be attended to some other time.
The Bill will directly affect the use of the power to enter property for the purpose of eavesdropping. Under the Bill, the Security Service could do that when working on organised crime, as it already can for other purposes under the Intelligence Services Act 1994. If the police and the Security Service were involved in a joint operation,it could happen that the police officers could not take that action whereas the Security Service could.
However, there is a further twist to the problem.The police do in fact carry out such activities and it is well known that they have done so for many years. They do it by getting authorisation from a chief constable or from a senior officer in the force acting on his behalf. It would be open to the Security Service to say that the police system is much simpler because the police do not have to go to the Home Secretary for a warrant but can proceed quietly with the agreement of a chief constable.
The Security Service might ask why it does not proceed on the police system. The safeguards included in the Bill would then not operate at all. That is one reason why the Bill is unsatisfactory, but the primary reason is that we are giving to the Security Service, for the purpose of its work on organised crime, a power that is accepted as necessary in some circumstances but that we are not giving to the police. From the police's point of view, that is profoundly unsatisfactory, for various reasons.
First, police officers engaged in such activities are on the very borders of the law and lay themselves open to charges of criminal or civil trespass. They can only hope
that their chief constable will protect them because he has given them the authority to act in that way. Protecting them, however, simply means giving evidence in their defence or as to their good character. It does not alter the fact that they lay themselves open to criminal or civil proceedings while acting in a way in which the Security Service could have acted for the benefit of the public because it feared that some major organised criminal activity was taking place.
Secondly, when the police carry out such functions, the public are not safeguarded as they are by the Security Service warrants granted by the Home Secretary. It is my understanding that, in cases of telephone interception, the Home Secretary examines the warrants personally and that they are carefully scrutinised.
We must have a system that the police can use, that has legal authority and that safeguards the public. It is logical that the same system should be operated by the police and the Security Service when they are dealing with organised crime.
The root of the problem that we confront in the Bill is that we are dealing with the Security Service aspect before we have introduced important measures that are needed to help the police. While I argued, in the context of the recent bombing, that it would be possible to defer the Bill while further work was done, I was also thinking that I should have been happier had the Government introduced ahead of the Bill the measures that the police feel are needed.
I suspect that more could be achieved by ensuring that the national structure of the police was in order, that the NCIS was on a proper legal footing, that the Scottish Criminal Intelligence Office's relations with the NCIS were on a proper legal footing and that the warrant system was such that the police could use it properly and freely. If we had done that before introducing the Bill, we might have done more to support the police. Of course, it would also have then been much easier to slot the Bill into place.
The amendment seeks to solve the problem by deferring the bringing into effect of the Security Service's ability to use its new powers against organised crime until action has been taken to ensure that the police have parallel powers to deal with organised crime. If it is not accepted, we shall be doing the police and the public a disservice.
'(2) Subject to subsection (3) below, this Act shall come into force on such day or days as the Secretary of State may appoint by order made by statutory instrument, and different orders may appoint different days for different sections of this Act.
(3) No order under subsection (2) above shall be made in respect of section 2 above unless the Secretary of State is satisfied that any power to be extended to, or obligation to be placed upon, the Security Service by that section is a power or obligation (as the case may be) which also extends to or is placed upon police forces.'.
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