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Mr. Michael: I understand the fears that my hon. Friend expresses. I point out that a National Criminal Intelligence Service exists. There is no accountability for it, other than nominally to the Home Office. The Bill

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provides for accountability to representatives of local police authorities and local police forces. There have long been calls for such accountability.

Mr. Cohen: I accept that, but the Bill provides for an enhancement of the powers of NCIS, as I described. That causes me concern, which I want to place on record.

Liberty has sent hon. Members a briefing on that aspect. It refers to the fact that, in 1990, the Home Affairs Committee heard evidence from several agencies that the criminal records provided to the courts and other agencies were inaccurate, incomplete or out of date, or contained extraneous or prejudicial material. Liberty states:

"The risks of inaccuracies and errors must only increase where the information concerned amounts to intelligence information, rather than criminal records."

It points out that the powers of the Data Protection Registrar are weak. There are no controls in the Bill on the quality or the content of the information that is to be kept on NCIS computers.

Mr. Gerald Bermingham (St. Helens, South): Will my hon. Friend accept, first, that I served on the Home Affairs Committee in 1990, and secondly, that Liberty seems to be slightly mistaken? We decided that, for criminal records, a national standardisation process would be a good thing. The question of enhancing intelligence data in terms of criminal records was never considered, and indeed was opposed.

Mr. Cohen: Intelligence data are going on to the NCIS computer by stealth. I quoted Liberty's point about the inaccuracies and inconsistencies that are increasingly finding their way on to the computer system.

Liberty also points out that there is unauthorised informal disclosure of information by serving police officers to third parties. There have been cases in which the law in that respect has been ineffective, and the cases have subsequently been quashed on appeal by the police officers. There is no effective law to stop the misuse of computer data.

Liberty concludes that without proper controls--safeguards for individuals and accountability--

"the risk of injustice to innocent people is high, and those risks increase where it is a national body which gathers and retains such information. There is a balance to be maintained between the important duties of the police in preventing and detecting crime and to provide safeguards to ensure that the state does not hold inaccurate information about innocent people, which may have severe consequences for them."

In enhancing the powers of NCIS in the Bill, the Government have not even considered that balance.

The second aspect of the Bill, which has justifiably concerned the House most, relates to the bugging and burglary powers. The case of Entick v. Carrington in 1765 enshrined the constitutional principle that the Englishman's home is his castle and cannot be invaded for reasons of state necessity by any state power without a prior warrant from a judge. Law Lords in another place described that as a constitutional principle, and it has been confirmed that the Bill will violate it.

Hon. Members will have received a booklet called "A law too far" by K. D. Ewing and C. A. Gearty of the civil liberties research unit of King's college, London. They quote the three reasons given in that 1765 judgment by Lord Camden and say:

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"The intrusion into the individual's property was 'executed against the party, before he was heard or even summoned; and the information as well as the informers were unknown'. Secondly, Lord Camden drew attention to the vagueness of the procedures accompanying the execution of the power, with the search taking place 'in the presence or the absence of the party, as the messengers shall think fit, and without a witness to testify what passes at the time of the transaction'. And thirdly, Lord Camden was concerned that the innocent person was 'as destitute of remedy as the guilty: and the whole transaction . . . so guarded against discovery that if the officer should be disposed to carry of a bank-bill'"--

which means put down a bank bill--

"'he may do it with impunity, since there is no man capable of proving either the taker or the thing taken'."

The language of 1765 might be elaborate, but those two authors say that the reasons given by Lord Camden are as relevant today as they were in 1765.

There should be a principle in relation to Lord Camden's judgment. First, the power to interfere with private property should apply only to serious arrestable offences as defined by the Police and Criminal Evidence Act 1984. Secondly, there should be prior approval by a judge, preferably a county court judge, who should be required to be satisfied that the degree of intrusion into the privacy of those affected by the surveillance is commensurate with the seriousness of the offence. A circuit judge should always be required to give approval before burglary or bugging of a private home takes place. Thirdly, the Bill should contain a constraint to safeguard professionals, such as solicitors and barristers to whom the hon. and learned Member for Burton referred, as well as doctors, journalists and priests.

I am concerned about the Bill's provisions relating to commissioners. I note that just one commissioner was envisaged, but that my hon. Friend the Member for Cardiff, South and Penarth (Mr. Michael) said that he was pleased to have tabled an amendment to increase the number to three. If it is argued that prior approval could not be obtained because a matter is urgent, a rota of judges would clearly be more appropriate than just three commissioners.

Mr. Michael: I am sorry to interrupt my hon. Friend again, and I am grateful to him for giving way, but he has not understood the argument. The amendment in the House of Lords, which was accepted by the Government, allowed for a minimum of three judges. Such a mechanism allows for the number required. They would be High Court judges, and therefore a higher level of scrutiny would occur than if circuit judges undertook that scrutiny, as my hon. Friend suggests. That would not be as great a protection of civil liberties as the mechanism that is now proposed.

Mr. Cohen: I still have problems with the commissioners' role. A minimum of three means that there could be only three, which would not address the issue of urgency raised by the shadow Home Secretary earlier.

The commissioners were first established to hear complaints. They have a highly restricted remit to uphold complaints. Surveillance and covert searches are likely to be authorised if a chief constable thinks that they are necessary; they would then be approved by one of the commissioners. However, it would be difficult for the commissioner to uphold a complaint unless it was extraordinarily perverse. It is therefore unlikely that complaints would be upheld.

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The commissioners do not have to give a reason for rejecting a complaint. Even more seriously, their decision cannot be appealed against or even questioned in court, so a complainant could not take the matter further. Like the commissioners who oversee the security services legislation, their role in relation to complaints will be tokenist. In the security services, not a single complaint has been upheld to my knowledge and the same would be the case with those commissioners, who will now have a prior consent function. Although it is said that they are likely to be senior judges, that will not necessarily be so, and, over time, that criterion might be diminished and a loophole might arise.

Exceptions would be made for very urgent cases, which is another loophole which might be widened over time. My real objection to the commissioners' role is that they will be the authorisers in the first instance and the appeal system in the second. They may even have given prior approval to bug and burgle in the first place. That is an unacceptable confusion of roles, and is wrong.

The term "serious crime" is extremely broadly defined. That definition gives the authority to bug and burgle. The Law Society, among others, has sent a briefing note to hon. Members saying that the term should be much more narrowly defined. As my right hon. Friend the Member for Chesterfield (Mr. Benn) said, the provision includes conduct by a large number of persons in pursuit of a common purpose. It will be aimed at demonstrators, those involved in industrial relations and other protesters. It is a catch-all which would take in peaceful protestors as well. It would give the authority to bug and burgle thousands of potential "Swampies" just because a police chief thinks that they are potential criminals. Such protestors should not be automatically regarded as likely criminals, let alone have their home, their parents' home and their friends' homes subjected to bugging and burglary, which could happen under the Bill.

The Home Secretary confirmed that surveillance and bugging have been going on for a long time, and the Bill is needed to legalise it. That casts light on the dubious legality that has been occurring. It amounts to an interesting confession of unlawfulness. For consistency, I suggest that a criminal conviction certificate should be issued on the Home Secretary and the Government before the election, because they have acted unlawfully and have a long criminal record in that respect.

My third point is about criminal conviction certificates, which will be operated by the new quango, the criminal records agency. I oppose imposing a fee of, say, a tenner, particularly on a long-term unemployed person. We do not know how frequently people will have to update their CCC--it will probably be at the mere whim of their employer. A similar cost applies to volunteers who work for worthy organisations, and perhaps to those organisations themselves. Therefore, there is a severe problem with fees.

Hon. Members will have received a brief from the Trades Union Congress about employee criminal records. It says that there are cases

"where employers should not only have every right to check a prospective employee's criminal record, but ought to be under a duty to do so"--

for example, those who work with children.

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The TUC also says:

"a positive case should be made for employee checks on a case by case basis",

otherwise it can amount to an unwarranted intrusion into a person's privacy and lead to higher crime rates.

In a passage about increasing crime, the TUC says that general checks

"would be likely to create a class of permanently unemployable people, many of whom have only offended once, and would be unlikely to do so again if they had steady employment."

It continues:

"Particularly for younger offenders these"

measures

"make it extremely difficult for them to 'go straight' through entry into the world of work . . . If they cannot get employment as a result of their conviction, they are far more likely to re-offend. Four out of five people supervised by the probation service were unemployed when convicted."

The TUC argues that Parliament should have another look at the section about CCCs. It says:

"Drawing the balance between the need to protect the public, the civil liberties of job applicants and the dangers of creating a permanently unemployable criminal underclass is not an easy matter. But we believe that Section V as it is currently drawn does not get that balance right."

Those are very relevant representations by a body that is expert in this field, and its remarks were confirmed by the Home Office's consultation paper "Disclosure of Criminal Records for Employment Vetting Purposes", published in September 1993, which said, as confirmed in a recent parliamentary answer to me:

"35 per cent. of men and 8 per cent. of women will have a criminal record of some sort by the age of 35".

It is they who will suffer and become part of the criminal underclass.

Paragraph 48 of the 1993 consultation paper said:

"The argument for a closed record is essentially to do with rehabilitation. Those who have a criminal record need to be given a chance to reform and live it down. An open conviction record would make this more difficult, and in particular would reduce ex-offenders' chance of getting work."

Somewhere between the 1993 Home Office paper and the Bill, the Government changed their mind, but the arguments are still very relevant.

The Bill is a bad measure. Just before a general election, we often have ill-thought-out legislation, even if it is well intentioned. The Child Support Agency is an example of that; the Police Bill is another. However, because important civil liberties are at stake, I hope that the Bill fails as a result of an election being called; more sane consideration could then be given to the balance between civil liberties and essential policing work without the election pressures that are felt by Front Benchers, and civil liberties would be more protected.

Like my right hon. Friend the Member for Chesterfield, I intend to vote for the Liberal Democrat amendment. There are few matters on which I agree with the Liberal Democrats, but on this occasion I will vote with them and against the Bill.

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