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Mr. Beith: Does the Minister expect the service authority to discuss with the director general the principles on which it deals with requests for information, so that the director general can say what guidelines he is working to, just as Home Office Ministers discuss with security authorities, without going into operational detail, the basis on which they deal with such requests?

Mr. Kirkhope: There is no reason why such discussions should not take place, and I expect them to do so. As the right hon. Gentleman inferred, the service authority is not expected to be involved in operational matters and operational control.

Mr. Alun Michael (Cardiff, South and Penarth): The Minister made it clear that NCIS will make decisions on operational matters. Advice on the systems of law in other countries would come from the Foreign Office and from the Home Secretary, as part of his responsibilities under the Bill. Judgments about the quality of justice in other countries should surely not be left to the operational

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authority. Departments of State have the capacity to make such judgments through their international knowledge and contacts.

Mr. Kirkhope: I thought that I had made it clear how responsibility would be divided. The Departments concerned would certainly be responsible for intelligence and assessment of the situation.

I hope that I have reassured the right hon. Gentleman to some extent, and that, on that basis, he will withdraw his amendment.

Mr. Michael: Everyone would want the system of justice operating in any country engaged in relations and activities involving NCIS to be one in which people in this country could be confident. My concern about the amendment is that it seems to place an obligation on NCIS to make judgments about such matters. The Minister's reply to me seemed to confirm a different view: that such judgments must be made by Government rather than by an agency. The agency will be responsible for operational decision making, but to ask a police authority--a service authority--to make decisions about the criminal justice systems of other countries is hardly something with which we would be happy if it operated in reverse.

I think that we all agree with the sentiment that we should be certain that the operations of NCIS involve co-operation, joint activities and support where there are systems of justice in which we can have confidence, and that, where there are reservations, great care should be exercised. To place a responsibility for making such judgments on the service authority would, however, constitute an abrogation of the responsibility of Government. Therefore, while I agree with the sentiments expressed by the right hon. Member for Berwick-upon-Tweed (Mr. Beith), I think that the effect of his amendment would be far removed from the responsibility that he sought to include in the Bill.

Mr. Beith: I think that we have made progress in this short debate.

As I see it, the head of NCIS--the chief constable--will need to have regard to advice from various directions before deciding how to use his powers under this clause, and, indeed, whether to use them at all to offer intelligence or support or to exchange intelligence. He will need to have regard to Foreign and Commonwealth Office guidance about the situation in the countries concerned, and, perhaps, to the Home Secretary's view of relevant matters. He must have regard to international obligations involving human rights, including treaties to which we are a signatory. He will also need to discuss the general framework within which he works with the service authority. It would be wrong for that authority to have no knowledge of such matters, because it does some of the job that the Home Secretary does in dealing with the comparable position of the Security Service. It is natural that the service authority should be involved in discussing the broad guidelines on the basis of which he works.

Given what the Minister has now helpfully put on record, however, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Clause 23

Aid by and for NCIS

Amendments made: No. 7, in page 11, line 34, after 'subsection (1)' insert 'or (2)'.
No. 8, in page 11, line 36, after 'direct' insert
'the Director General of NCIS,'.
No. 9, in page 11, line 38, after 'Constabulary' insert 'or'.
No. 10, in page 11, line 39, leave out
'or the Director General of NCIS'.--[Mr. Kirkhope.]

Clause 95

Authorisations: form and duration etc.

Amendment made: No. 6, in page 38, leave out lines 26 to 28.--[Mr. Kirkhope.]

Clause 97

Authorisations requiring approval

Amendment made: No. 11, in page 39, line 31, after 'applies' insert 'to the authorisation'.--[Mr. Kirkhope.]

Mr. Beith: I beg to move amendment No. 2, in page 40, line 9, at end insert--

'"urgency" means circumstances in which it is not reasonably practicable to apply for an authorisation because to do so would cause such delay as would be likely seriously to prejudice the effectiveness of the operation.'.

We now come to what has been the most publicly controversial part of the Bill--the part that deals with intrusive surveillance, or bugging.

It has been a long and complex story. From the start, Liberal Democrats have believed that there should be a prior authority for intrusive surveillance in places that people might legitimately regard as private, such as private houses or hotel rooms. That does not apply to lock-up garages or cars being tracked: those are dealt with in another part of the Bill. We felt that that authority should come from a judge, and proposed that it should come from a circuit judge.

To cut a long story short, in another place, not only our amendment, but, thanks to a change of heart by the Labour party--which had initially been satisfied with a post hoc authority--another amendment was carried, which gave the job to a commissioner or one of a body of commissioners who held or had held high judicial office--a judge or former judge, but acting through a body of commissioners. I do not want to go back over that ground. We have our own preference as between the sorts of prior judicial authority, but, at least at this stage of the Bill, an application must be made to a judge who is a commissioner, to gain authority to undertake the intrusive surveillance to which I referred.

Mr. Michael: In view of the debates on the issue, does the right hon. Gentleman now accept that the option that he preferred--that of an application to a circuit judge--was a weaker way of protecting civil liberties than the prior application to a commissioner, which was the Labour party's proposal?

Mr. Beith: No. The hon. Gentleman's original position and that of the Labour party--that no prior authority was

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required--was as weak as dishwater. It was disgraceful that the Labour party should have contemplated the Bill going on to the statute book in that form. I welcome its conversion--

    "Joy shall be in heaven over one sinner that repenteth".

Mr. Michael: Will the right hon. Gentleman kindly restrain his capacity for exaggeration, which seems to have been brought on by the imminence of an election? The Labour party welcomes the commissioner operation, because we believe that it is the right way of achieving a proper balance in relation to authority for surveillance and the protection of civil liberties. We said from the beginning that we felt that there should be scrutiny and a strengthening of the protection in the legislation as it passed through both Houses. We have fulfilled our part with honour and distinction.

Mr. Beith: I am tempted to say, "Come on. The other one's got bells on it." The hon. Gentleman must consider what his colleague the hon. Member for Blackburn (Mr. Straw) said during the Bill's earlier stages, when he was satisfied that we did not need a system of prior authorisation. There has been agreement throughout that a body that reviewed the whole process--the commissioners--would be an element in the system. The change has been that that body has also been entrusted with giving prior approval to intrusive surveillance, a change that was not originally supported by the Labour party and that it supported later. I have welcomed that, and the hon. Gentleman should accept those kind words with good grace, but it took quite an effort.

I am glad to say that many Labour Members voted with us in favour of our circuit judge amendment, as they did on other aspects of this Bill and the Crime (Sentences) Bill, even when advised not to do so by Labour Front Benchers. Thankfully, some people in that party in another place are strongly committed to civil liberties.

We are dealing now with the circumstances in which prior approval would have to be given by the commissioners. The crux of the issue is urgency; that is what the amendment is about. There is a fear that, because, in urgent cases, prior authority or approval will not be necessary--it will be sufficient to notify the commissioner at the time or as soon as possible thereafter of the intrusive surveillance operation--that creates too wide and open a measure in the Bill. I shall not go as far as the Home Secretary, who said about another aspect of another Bill that it was driving a coach and horses through it, but there is a potentially wide loophole that might be too extensively used. In Committee and again today, I seek to define "urgency" more clearly.

In discussions, we have refined the position between the Government and ourselves. I recognise that, so far as they have been expressed to me, certainly in private, the Government's intentions seem to be what I would want them to be--that those urgent provisions should be used only in circumstances where it was not reasonably practicable to apply for an authorisation, because to do so would cause such delay as seriously to prejudice the effectiveness of the operation. Unless there is some such understanding, there is a slight danger that people working in that sphere will say, "All operations are urgent. In the nature of things, when your opportunity comes, you have to act quickly."

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For the comparable activities of the Security Service, it is not felt necessary to have any urgent provisions at all. The same is true of police applications to tap telephones. What happens? The Home Secretary must be consulted and give his authorisation, his warrant. If the Home Secretary has to be got out of bed for the purpose, that is what happens. If he has to be tracked down on his holidays for the purpose, that is what happens. If he is out of the country, another Secretary of State is got out of bed--or found, wherever he may be.

That procedure is efficient enough to work rapidly in cases of urgency. We must also remember that no such action takes place without a formalised procedure within the police force. The chief constable is involved. Papers are brought to him, and the process takes some time. It is not a case of someone making a snap decision on the spot, after which something happens immediately.

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