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'(d) the situation is one in relation to which such further conditions as may be prescribed by regulations made by the Secretary of State are required to be satisfied before conduct may be treated as authorised by virtue of this subsection; and
(e) the conditions so prescribed are satisfied in relation to that situation.'.

The intention of this subsection is to give effect to mutual legal assistance agreements. However, concerns were raised in Committee that in this part of the Bill there may be a loophole that would allow unwarranted interception to take place in the United Kingdom, perhaps to assist the authorities in another country, without the Secretary of State laying down the conditions in regulations.

Although there was no intention of using this subsection in that way, the amendment will ensure that it has no effect until the Secretary of State makes the regulations that we have always envisaged.

Amendment agreed to.

Clause 5

Interception with a warrant

Mr. Simon Hughes: I beg to move amendment No. 60, in page 7, line 26, leave out "the Secretary of State" and insert "a judge".

Mr. Deputy Speaker: With this it will be convenient to discuss the following: Amendment No. 61, in page 7, line 45, leave out "The Secretary of State" and insert "a judge".

Amendment No. 62, in page 8, line 9, leave out "the Secretary of State" and insert "a judge".

Amendment No. 63, in page 8, line 30, at end add--

'(7) The Secretary of State shall by order set out the procedures by which judges shall be selected for the purposes of this section.
(8) The Secretary shall not make an order under this section unless a draft of the order has been laid before Parliament and approved by a resolution of each House.'.

Government amendment No. 64.

Amendment No. 6, in clause 6, page 8, line 44, at end insert--

'( ) the Chief Executive of the Benefits Agency;'.

Government amendment No. 22.

Amendment No. 1, in page 9, leave out lines 4 and 5.

Government amendment No. 23.

Amendment No. 2, in page 9, line 14, at end add--

'(6) An interception warrant shall not be issued in respect of any application made by or on behalf of a Permanent Under Secretary of State in the Ministry of Defence unless it has been authorised by a Secretary of State other than the Secretary of State for Defence'.

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Amendment No. 3, in clause 7, page 9, line 18, after "official" add

'who may not be an official responsible to, or subject to, the direction of the person applying for the warrant.'.

Government amendment No. 27.

Mr. Hughes: It would be unreasonable to say that the amendment breaks new ground. Not only did the Committee discuss who should authorise interception with a warrant; my reading of what was said then shows me that the Minister knew that we had engaged in a similar debate during the Committee stage of the Terrorism Bill, and on the Floor of the House. I was only mildly miffed to note from the report that my hon. Friend the Member for Sheffield, Hallam (Mr. Allan) had done so much better than me in putting the case; I am only sorry that he cannot be here tonight to put it even more wonderfully.

In the debate about who should be able to authorise an interception with a warrant in areas that are clearly important to the public, the interesting question is whether the division of powers means that it is better for the warrant to be issued by a politician--however quasi-judicially he may act--or by a judge. We have argued in regard to this Bill, as we argued in regard to the Terrorism Bill, that a judge should give that authority.

The second sub-debate concerns the sort of judge who should be involved. Having read the report of the Committee debate, I appreciate that a judge picked at random from the whole range of circuit judges, with no particular experience, might not command sufficient confidence. That is why amendment No. 63 suggests that the judge should be

I suggest not only that there should be a panel from which the judge to authorise a warrant for interception is drawn, but that the panel should consist of senior judges. If the Government conceded the principle and we embarked on a debate about what sort of judge should be involved, I would argue that it should be a High Court judge rather than a circuit judge, because an application of this kind is not sought or granted all that often.

8.30 pm

The Government have argued that this should be a political, though quasi-judicial, decision. Although that has not been the unanimous view even of Conservative Members, in Committee the right hon. Member for Penrith and The Border (Mr. Maclean) and others favoured a decision on the part of the Executive, on the basis that the judiciary could then be used to review the Executive's decision. I understand that argument. Our only core reason for believing that appropriately qualified, appropriately senior judges would be better is the fact that they not only are, but are seen to be, independent of political pressures.

We are deciding who should authorise the interception of people's communications and, indeed, the invasion of people's privacy. We believe that, because this will often involve the organ of the state acting on behalf of, and accountable to, Ministers--frequently to the Home Secretary if the intelligence services are involved--it is better to separate the agencies who seek the authority

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from the person who gives that authority. It is a straightforward case; we have made it before, and I hope that I have made it sufficiently clearly today. It applies to amendments Nos. 60, 61 and 62. Amendment No. 63 both provides for the process by which judges are selected, and provides that the order should be laid before both Houses of Parliament and require a positive resolution procedure.

We welcome amendment No. 64. I understand that the Government tabled it after hearing my right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith) argue that there was confusion, and a potential conflict of interests, with the original proposal that, in relation to the Ministry of Defence, the decision should be made by a Parliamentary Under-Secretary of State for Defence--a Minister. He argued--and we are grateful to the Government for accepting his argument--that the decision should be made by the head of the relevant service: the Chief of Defence Intelligence. My right hon. Friend spoke on the basis of his experience and as a member of the Intelligence and Security Committee, and we are glad that his suggestion was accepted.

We oppose amendment No. 6, tabled by Conservative Members.

Mr. Heald: Shame!

Mr. Hughes: It is not a shame at all; it is a shame that the amendment was tabled.

There seems to be a dichotomy, a dilemma and a contradiction in the Tory party. The Tories are concerned about excessive powers in the Bill: their reasoned amendment, which we shall debate on Third Reading, puts that case. We have similar concerns--although we do not draw the same conclusions about how to proceed at this stage--but we do not think that the specific additional person who should have power to pry into people's affairs and intercept communications should be someone from the Benefits Agency. Benefit fraud exists, as does tax fraud and other fraud in society, but we must ensure that we authorise clearly, for particular purposes, the interception of communications.

Clause 6 sets out not only individuals and persons who are entitled to make the application in this country--they are the heads of various services: the Security Service, the Secret Intelligence Service, GCHQ, the National Criminal Intelligence Service, the Commissioner of Police of the Metropolis, the Chief Constable of the Royal Ulster Constabulary, other chief constables, and commissioners of Customs and Excise; the head of defence intelligence is added in amendment No. 64--but the heads of the competent authorities elsewhere.

Then we have the debate about whether the Secretary of State should have the power to add or not to add to those people. The Conservative party wants specifically to add the chief executive of the Benefits Agency. Such people are not in the same league as those other people, who work in services that, in essence, are to do with crime and the detection of crime. We believe that that is appropriate as a grouping. It would be inappropriate for the chief executive of the Benefits Agency to be added to that list.

Government amendment No. 22 is a further amendment that we welcome. It follows along the lines of amendment No. 1, which we tabled and which was to leave out lines 4 and 5; the Government proposal is to leave out lines

8 May 2000 : Column 585

4 to 9. It is all part of the tightening of the provision at the end of clause 6, which in our view should not allow the Government either to add or to take away at their own instigation the people who should be in that specialist list.

We are grateful again that there has been a move from the Government. We accept that the balance is right. If we are going to ensure that the Government should not have the power to add at their own instigation, of course they should not have the power to take away at their own instigation, either. That matter should come before Parliament. The legislation should be amended if the Government want to make that change.

That deals with Government amendment No. 23, too, which leaves amendments Nos. 2 and 3 and Government amendment No. 27. We have dealt with amendments Nos. 2 and 64, which replace a Permanent Secretary in the MOD with a Chief of Defence Intelligence. Amendment No. 3 is linked with that. Amendment No. 27 is the consequential Government amendment; it follows as a result of the earlier ones.

The net effect of the group is to introduce welcome concessions by the Government, specifically in relation to the MOD and to restricting the power to add and to take away; all that is welcome. There is the other proposal from the Conservative party, about which I have indicated our view and for which Conservative Members, to be fair to them, have argued before. We have been around that circuit. That leaves us with the substantive debate about who is the appropriate body to authorise interception of communication.

It is a matter of confidence. The working of the whole process depends on the authorities doing their job responsibly. Public approbation and confidence depend on the public believing that they trust the people who work the system. People say, "If you are not happy with the system, you can challenge it," but, by the nature of that particular part of public life, people may not know that they have been the subject of an application for a warrant, that a warrant has been issued and that someone has been intercepting communications, whether it be their e-mails, telephone calls or other communication.

It is important to have the maximum confidence in the authorities. Fairly narrow and specific authorisations can be applied for under the legislation; authorisations in relation to communications at home. In relation to communications in this country, people have to apply for a specific purpose, but there are wide-ranging authorisations in relation to communications between countries.

My understanding of the legislation is that, unamended, it will allow a general application to be made that is not specific to, for example, the hon. Member for North-East Hertfordshire (Mr. Heald), the hon. Member for West Lancashire (Mr. Pickthall) or me. However, an application could encompass us all if it has been made, for example, by NCIS in relation to information on drug dealing, or by Customs and Excise in relation to the importation or exportation of drugs. Such an application could be made because an authority believes that a dialogue on such matters is being conducted by mobile telephone, pager or e-mail between people in the United Kingdom and people in another jurisdiction.

Such provision would be worrying, especially as people would not know that their communications are being intercepted unless they are informed of it or accidentally

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discover it. We believe that it could be made less worrying by ensuring that the person authorising the interception is the most independent authority possible, who could ensure protection of the citizen's rights.

I have never understood the great resistance to the idea--although I understand its logic--that authorisation should require judicial intervention. The United Kingdom has always required police to go to magistrates to obtain a search warrant, to ensure that that invasion of someone's privacy--which may entail breaking down a door, searching documents or stopping someone on the street using extraordinary powers--is authorised by someone who is independent of the investigation and prosecution processes.

As I have gone round this course several times, I sense that the Government will not change their position on the issue. We have had no inkling that they are about to shift on it, and I do not read such a change in the Minister's body language. However, the case for a change has been made as strongly and persuasively in our consideration of this Bill as it has been in our consideration of previous legislation. Even if we do not win the argument today, I hope that we have flagged up the issue for our friends in the other place, and that they will come to the view that an appropriate level of the judiciary, rather than Ministers, should authorise the interception of normal communications between individuals. Whatever else is said about such an interception, it is an invasion by the state of an individual's liberty. It should be done only with the most stringent safeguards.

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