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Mr. Nigel Forman (Carshalton and Wallington): Will my right hon. and learned Friend give way?

Mr. Howard: I think that I indicated to the right hon. Member for Chesterfield (Mr. Benn) that I would give way to him next.

Mr. Benn: The Home Secretary refers to terrorism, kidnapping, drug smuggling, and so on, and one understands that point, but one of the grounds for intrusive surveillance is given as


No crime is mentioned. That would apply to road protesters, trade unions and political parties. A Labour Home Secretary who regarded the Conservative party as

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having a common purpose--as occasionally itdoes--would be entitled to bug any Conservative party office. That is the point that has aroused a great deal of concern, and the right hon. and learned Gentleman has not even touched on it.

Mr. Howard: I have not got very far into my speech, but I will answer the right hon. Gentleman's point now. There are crimes which might warrant the use of the powers that would not come under the second limb of the definition of serious crime in the Bill. The right hon. Gentleman has clearly looked at the matters closely, so he will be aware that the second limb refers to the likelihood of a first offender, 21 years old or over, getting a sentence of three years imprisonment. I hope that I may be able to carry the right hon. Gentleman with me on the point that there are criminal activities that would not fulfil that criterion but might merit the use of the powers by the police.

Mr. Benn indicated dissent.

Mr. Howard: The right hon. Gentleman shakes his head. Let me see if I can give an example which might cause him to reconsider. It is perfectly possible to conceive of a situation in which a large number of neo-Nazi youths concerted to disrupt a major football match. I suggest that that might very well merit the use of such investigative techniques. Nevertheless, if they were over 21 years old and of previous good character, none of the individuals involved might be sentenced for more than three years imprisonment for such an activity. That is what that limb of the definition is designed to cover.

I draw the right hon. Gentleman's attention to an additional safeguard. The statutory code of practice that we intend to provide in the Bill will enjoin chief officers of police to make a judgment about the proportionality of the use of the powers against the mischief at which they are targeted and which they are designed to prevent. Those safeguards should be sufficient to allay the anxieties to which the right hon. Gentleman has referred.

Several hon. Members rose--

Mr. Howard: I think that I owe my hon. Friend the Member for Carshalton and Wallington (Mr. Forman) the next intervention.

Mr. Forman: When trying to assess such matters, I always try to look at such empirical evidence as may be available rather than at what might happen. The Library briefing on the matter states that the Government undertook an exercise, looking at the example of 1995, and found there were approximately 2,100 chief officer authorisations by police and Customs and Excise of intrusive surveillance operations in the United Kingdom. Can my right hon. and learned Friend give the House some idea of the rough breakdown between police and Customs and Excise on the one hand and between one kind of authorisation and another? It would help to inform today's debate.

Mr. Howard: I am afraid that I cannot do so at the moment. I shall cause inquiries to be made about whether

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I can answer the first part of my hon. Friend's question about the breakdown between police and Customs and Excise. I know that we cannot give a breakdown on the second part of his question. I can say, however, that the majority of operations that were authorised under the use of the powers do not involve the sensitive categories about which there has been a great deal of debate, particularly in the other place. The majority of the operations consist, for example, of placing a beacon under a motor car so that the motor car's movements can be traced. The vast majority of operations do not involve intrusion into private premises, lawyers' offices, medical surgeries or anything of that kind.

Several hon. Members rose--

Mr. Howard: I want to make some progress, but I will give way to the right hon. Member for Berwick-upon-Tweed (Mr. Beith).

Mr. A. J. Beith (Berwick-upon-Tweed): The Home Secretary goes on about safeguards, but in his statement yesterday, which he made with the approval of his Labour shadow--it was almost a joint statement--he said that prior approval would not be necessary even in sensitive cases. That drives a coach and horses through the safeguards. If the security services wish to undertake intrusive surveillance, the Home Secretary is not bypassed. The procedure has to be followed and the Home Secretary gives his approval even if he has to be disturbed in the middle of the night.

Mr. Howard: Those are different cases. One of the greatest weaknesses in the Liberal Democrats' position, and in their amendment that was carried in another place, is that it makes no provision for urgent cases. Even the latest communication from the chairman of the Bar Council, who has shared many of the right hon. Gentleman's concerns about the Bill, recognises the importance of making provision for urgent cases. I do not accept that such provision drives a coach and horses through the Bill--it is an essential safeguard.

Mr. Richard Shepherd (Aldridge-Brownhills): Traditionally, the House has always regarded as constitutional those matters which affect the relationship of the citizen to the state or its agencies. The Bill undoubtedly touches on that issue. I cite the precedent of the Official Secrets Act 1989: there was no question about that being taken on the Floor of the House. The Bill would attack the rights of citizens over their domestic premises and their privacy, which is a major constitutional issue.

Mr. Howard: There are many precedents which point the other way, as I am sure that my hon. Friend would be the first to agree.

Mr. Shepherd: Cite them.

Mr. Howard: So that the list is as comprehensive as possible, my right hon. Friend the Minister of State will cite the precedents when he winds up.

Much has been said about the Bill in another place and in the media. Much of it has been misleading and misinformed. We are not proposing a great constitutional change. Intrusive surveillance has been authorised by

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chief officers for many years on the basis of Home Office guidelines first issued in 1977, when we had a Labour Government, and updated in 1984. The courts have accepted the evidence obtained from the use of those techniques as part of the prosecution case. The use of the techniques appears to have been authorised by chief constables with responsibility and restraint.

Mrs. Ann Clwyd (Cynon Valley) rose--

Mr. Howard: I must make some progress. I have given way generously, as the hon. Lady must accept.

Intrusive surveillance is used only in cases involving serious crimes and when there are no alternative methods available. In our view, the arrangements for authorising the use of intrusive surveillance must satisfy two basic principles. First, authorisations must be made by those with the training and operational experience to judge whether the surveillance is necessary. The person taking the decision must understand all the circumstances, including the investigative methods that have been used and the potential risk to public safety or even human life if surveillance is not attempted. Those matters go to the heart of policing. They should be decided by chief officers, subject to independent review that does not entail second-guessing of their operational judgments.

The second important principle is that those who authorise intrusive surveillance must be accountable for their decisions. Chief officers are accountable and they have in the past been required to justify their decisions in court. These are the principles which have guided my approach to the contradictory amendments tabled in another place.

Mrs. Clwyd: In the past half hour, the Home Secretary has given an omnibus answer to several questions on the use of mobile phones. He has been asked for the number of occasions on which access to the UK Cellnet system has been sought by each police authority. Most people in Britain have no idea that mobile phones are being used for this purpose. I found his answer--that the information was not held centrally--completely unsatisfactory, as most other people will. Should this matter not come within the scope of the Bill? The Home Secretary must surely address that point.

Mr. Howard: That matter involves other statutory provisions, as the hon. Lady will appreciate, but it is a matter of satisfaction to me that there is no central record of the number of occasions on which these powers have been used. The powers do not come within the control of any central authority in this country, but are exercised by local police officers who are accountable to local police authorities. I would not wish there to be any step that would attract these powers into a central repository. The hon. Lady should take some satisfaction from the fact that those records are not kept centrally.

I have described the principles that have guided my approach to the matter and the contradictory amendments tabled in another place. The amendment requiring all intrusive surveillance to have the prior authorisation of a circuit judge is unacceptable. As I have explained, I do not accept that judges can properly be expected to take these decisions. Furthermore, the absence of provisions for urgent cases--the very point on which the right

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hon. Member for Berwick-upon-Tweed intervened a few moments ago--would seriously inhibit the fight against serious crime. In hostage situations it could even endanger life, and I am not prepared to take that risk. It could also reduce accountability, because judges could not be called to account in the same way as chief officers. The amendment on that subject was moved by the Liberal Democrats in another place.

The amendment tabled by the Labour party in another place does not present quite the same difficulties. That is not altogether surprising, given the tortuous evolution of the Labour party's approach to this issue. When I originally announced my proposals and published the Bill, the hon. Member for Blackburn (Mr. Straw) strongly supported them. He saw the need for them, and rebutted the criticisms which were made of them with vigour. Under a sustained onslaught from The Guardian and others, however, he subsequently retreated. That is perhaps an object lesson in what life would be like under a Labour Government--strong words, vigorous argument, but retreat at the first puff of pressure.

Faced with that reaction--and with the schizophrenic amendments passed in another place--I have considered what would be the best way forward. We had already amended the Bill in another place to provide for all authorisations to be notified to the commissioner as soon as reasonably practicable, and for there to be more than one commissioner to ensure that authorisations could be reviewed quickly. In most cases, that would have meant that a commissioner would be able to scrutinise the authorisation before the operation commenced and put a stop to the intrusive surveillance if he thought it outside the criteria of the Bill.

We intend to bring forward amendments in Committee which will modify clause 91--which was inserted in the other place--to build on the approach embodied in the Government amendments. Our changes will require that the approval of the commissioner is obtained before an operation begins where there are reasonable grounds for thinking that the operation could affect legal, medical or journalistic privilege, or where the operation involves intrusion into residential dwellings, offices or hotel bedrooms.

Prior approval will not be necessary where the police or customs are acting with the consent of the person who is able to give permission in respect of the relevant premises. Nor will prior approval be necessary in urgent cases, but the commissioner would have to be notified as soon as reasonably practicable after the authorisation had been given.

Where prior approval is required, the commissioner will give it if, to borrow words from the Police and Criminal Evidence Act 1984,


that the authorisation fulfils the requirements in clause 92. Those requirements are that the action is likely to be of substantial value in the prevention or detection of serious crime and that what the action seeks to achieve cannot reasonably be achieved by other means.

The commissioner will not seek to put himself in the shoes of the chief constable. That is an important difference between our approach and the test favoured by the Labour party in another place, which would have involved second-guessing by the commissioner of the chief constable's decision.

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Under our proposals, there will be no second-guessing of operational judgments. It will be for the chief officers to authorise and for the commissioners to scrutinise that authorisation to determine that there were reasonable grounds for the proposed action. I believe that our approach strikes the crucial balance of ensuring that operational decisions are left to those best qualified to take them, but that there is strong and independent scrutiny and oversight.

The measures ensure not only that there will be an effective oversight system that fully recognises the sensitivity of the operations, but that police and customs officers will continue to be able to deploy the most sophisticated methods necessary to achieve effective results.


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