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6.9 pm

Mr. A. J. Beith (Berwick-upon-Tweed): I beg to move, To leave out from 'That' to the end of the Question, and to add instead thereof:

Our amendment sets out our concerns about three key areas of the Bill; the bugging provisions, the general criminal conviction certificate provisions--the wide nature of which will lead to a significant change in the rights of our citizens--and the excessive centralisation of the governing bodies of the National Criminal Intelligence Service and the National Crime Squad.

I am on record as supporting the need for a Bill on those issues. During the discussions that preceded the introduction of the Security Service Act 1996, I argued strongly for such a Bill. The Intelligence and Security Committee, of which I am a member, reported on the need for legislation. It would have been logical for the Bill to

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be introduced at the same time as, or even before, the Security Service Act 1996. It is necessary to put bodies of the significance of NCIS and the National Crime Squad--which the Prime Minister announced nearly two years ago would be created from the regional crime squads--on a statutory footing.

It is also necessary to do something about the unauthorised, and in many respects illegal, bugging activities carried out by the police for many years, in the absence of any statutory power. They carried out the bugging to detect crime, in parallel with the use of powers by the security services, which had a proper authorisation procedure. When the two services began to work together on organised crime, the illogicality became obvious.

The powers on bugging are necessary, because they can be crucial in dealing with certain crimes, but safeguards are equally necessary. In the recent NCIS investigation, carried out by the chief constable of Northumbria, it became clear that nearly 1,000 records of telephone intercepts had gone missing. Their removal had not been recorded and they could not be traced. In that case, powers were not abused, but the carelessness and lack of proper procedures meant that rights were not safeguarded as they should have been. That case should be a warning to us as we consider the provisions on bugging.

The law has a serious gap, because it does not protect citizens against surveillance by others. Intrusive surveillance can be and is carried out by people who have less justification for doing so than the police. We are not adequately protected against that. The Government have promised in the past to take action, but they have not done so. It would be understandable for the police to be concerned that their use of the powers to bug in the detection of serious crime is being scrutinised carefully, while other more dubious people make use of the same technology to eavesdrop on people without justification. Equipment for the purpose is widely available in shops.

When the Bill was introduced, it was a great disappointment to people who thought it should include prior authorisation that paralleled the system that applied to the security services. From the beginning, there appeared to be an agreement between the Home Secretary and his Labour shadow. The hon. Member for Blackburn (Mr. Straw) seemed satisfied that subsequent review would be sufficient. Of course, it is an improvement for bugging to have a legal basis and for applications to bug to be reviewed by commissions, but that is not an adequate substitute for prior authorisation of intrusion into private places. That is the essence of the Bill. The phrase "an Englishman's home is his castle" has been used, and we are talking about intrusion into places that people legitimately regard as private.

In another place, my noble Friend Lord Rodgers provided firm opposition. We have cause to be grateful to him, because I do not believe that the Labour party would otherwise have adopted its present view. In the end, of course, the Labour Front Benchers were also influenced by the views of many of their own peers. Many Labour Members in the other place voted for our amendment, and others were actively involved in persuading the hon. Member for Blackburn that his original position was not acceptable.

Mr. Budgen: Does the right hon. Gentleman agree that one of the most disagreeable features of modern politics

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is the way in which new Labour has tried to become more authoritarian than the Tory party? Its policy appears to be that, if the Tories are in favour of kicking a beggar once, new Labour is in favour of kicking a beggar twice. As a result, the official Opposition have not done their job on the Bill. Is that not an additional argument for insisting that the provisions on prior authorisation are considered on the Floor of the House?

Mr. Beith: Perhaps unusually, I agree with both parts of the hon. Gentleman's intervention. There is a dangerous closeness between the Home Secretary and his shadow, and both are under criticism from within their parties. Speaking as a Liberal Democrat, I welcome the different views that have been vigorously expressed in both the other parties. I also agree with the hon. Gentleman that part III should be taken on the Floor of the House, because it involves major constitutional issues.

In another place, we argued that entry into a private place to carry out intrusive surveillance should require prior authorisation by a judge. In England and Wales, circuit judges would be appropriate and convenient, because they are available in all police areas. We are not persuaded that authorisation should be given by a judge who also serves as a member of the body of commissioners which subsequently reviews the authorisation. That is a fundamental weakness in the approach of the Government and the Labour party. Those who give the permission will subsequently review whether it was given satisfactorily. That does not make sense.

Mr. Straw: I am sure that the right hon. Gentleman would not wish to mislead the House, but he was incorrect in what he said about the Lords amendment tabled by the Liberal Democrats, which did not confine prior approval arrangements to premises. It covered any surveillance operation.

Mr. Beith: The Labour amendment did not restrict the provisions to private residences: it would also apply them to the Arthur Daley warehouse which, as I shall shortly argue, need not be covered by the prior authorisation procedure. It ill behoves those who thought that no prior authorisation was necessary to criticise the details of the prior authorisation that we suggested.

It is a mistake to give the review body the initial power of approval, and that must be reconsidered. Chief police officers believe that a central unit for processing applications is desirable, and I understand that, but that would not require the approving judges to act as commissioners. The central unit could use a different panel of judges.

Nobody has explained so far what will happen in Scotland. Is it assumed that one of the commissioners will be a Scottish judge? Is it assumed that there will be a unit in Edinburgh to process applications, or will all Scottish police forces have to apply to London for an authorisation? Scottish police officers are very concerned about those questions.

The procedures set up by the Bill must be capable of being implemented rapidly in emergencies, to avoid recourse to retrospective approval, which is undesirable and is not thought necessary for the powers under the Interception of Communications Act 1985 or the Security

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Service Act 1996. The Security Service deals with situations which, in the way that they must be handled, are not dissimilar to those with which the police deal. The Security Service must apply to the Home Secretary for authorisation. If the application is urgent, the Home Secretary has to act urgently. It is a job that he does not delegate to a junior Minister, and if he is out of the country, it is done by another Secretary of State, but it is done urgently, and there is no reason why a judge cannot do that job urgently.

Nobody has so far suggested that it is necessary to bypass the procedure of recourse to the Home Secretary, either for the Security Service or for police use of the interception of communications legislation. They have recourse to the Home Secretary for approval in such cases, and there is not an emergency bypass. The suggestion that this cannot be done in cases where there is an intrusion into a private residence--which must be mounted before the person returns to that residence--does not stand up. Even if it were to prove persuasive to the House, it must be more narrowly defined than "cases of urgency". That is the blandest definition we could have, but it has found approval with both the Home Secretary and the hon. Member for Blackburn.

The provisions of the Bill extend to a far wider range of surveillance activities than have been featured in the public debate. These include measures to locate and track vehicles, the surveillance of lock-up warehouses--which may be used to tranship weapons or drugs--and surveillance in a public place. We accept that some of these activities--although they should be reviewed by commissioners--need not require prior authorisation on the same basis as the bugging of a private residence.

Another interesting case is that of the confessional. The Home Secretary looked as if he were about to be drawn into some theological difficulty over this issue, and the status of the assurance he gave was not clear. It was said that the police would not use the powers in relation to what was described as "the seal of the confessional". In the first place, it is not clear how the Home Secretary can give that assurance for every police force which may make applications. Secondly, it is not clear how that will affect other groups which, theologically, do not accept the concept of the confessional and a priest giving absolution, but have similarly confidential discussions between a member of the congregation and the minister--whether it is a Protestant minister, a rabbi or someone else in a similar position.

It is not clear whether the Home Secretary intends that these powers could never be used, even with prior judicial authorisation, although there might be a case for doing so. My mind goes back to a Catholic priest in Ireland, who was found to be involved in gun-running activities. I regard that as an exceptional case, but one that might justify prior authorisation for use of the powers. There is an area of confusion that will have to be sorted out, and the solution cannot depend on one's willingness to accept only a Catholic doctrine of confession. It would be an odd piece of legislation if it were so based.

I do not believe that the deal between the Home Secretary and his Labour shadow, the hon. Member for Blackburn, will do. We must return to the bugging powers on the Floor of the House.

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