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Mr. Heald: As the hon. Member for Southwark, North and Bermondsey (Mr. Hughes) knows, Conservative Members do not share his view on amendment No. 60--that a judge should decide whether an interception warrant is granted. As we have explained on previous occasions, the Opposition's view is that the Secretary of State--with the unique knowledge that he possesses, and the frequency with which he will be dealing with those issues--is best placed to make that decision. Interestingly, on Second Reading, the chairman of the Intelligence and Security Committee, my right hon. Friend the Member for Bridgwater (Mr. King), very forcefully made the point that Secretaries of State take those responsibilities particularly seriously.
We welcome some of the Government amendments in this group. We certainly welcome Government amendment No. 22, which restricts the list of those who may apply for an interception warrant by removing the catch-all clause 6(2)(k), which provides that an application may be made by or on behalf of
- any such other person as the Secretary of State may by order designate for the purposes of this subsection.
We also welcome the Government's decision to change the person responsible for defence-related applications to the Chief of Defence Intelligence. The argument on that matter emerged in Committee and was well made, particularly by the right hon. Member for Berwick- upon-Tweed (Mr. Beith).
Amendment No. 6 seeks to add the chief executive of the Benefits Agency to the list. It is a recognition of the seriousness with which the Opposition view the issue of
benefit fraud, especially how it should be fought. We say that, in some ways, the Bill does not provide crime fighters with all that they need. The chief executive of the Benefits Agency seems to be the senior official responsible for the detection of benefit fraud and, as such, we believe that he should be included in the list.Benefit fraud is by far the most substantial crime by value committed in the United Kingdom. The Government say that it is so important that the security services can be involved in the worst cases, investigating organised crime. It is a pity, then, that the Benefits Agency should have to rely on the work of the National Criminal Intelligence Service or others to carry out its function.
When I suggested in Committee that the relevant person should be the Under-Secretary at the Department of Social Security, the Minister said that I was wrong and that the provision should refer to the Benefits Agency--so here it is: how about it?
8.45 pm
Mr. Charles Clarke: I have appreciated throughout our proceedings the jovial and positive spirit of our exchanges.
The intention of amendments Nos. 60 to 63 is to remove the power of the Secretary of State to issue interception warrants and to hand it to the judiciary--specifically to judges selected by the Secretary of State by order.
As the hon. Member for Southwark, North and Bermondsey (Mr. Hughes) acknowledged, the debate has a long history. I hear the arguments urged by those who advocate judicial involvement but, as I have said on several previous occasions, they do not persuade me. This is not only body language: it is words.
I maintain the view that authorising interception involves particularly sensitive decisions that are properly a matter for the Executive. The warrant-issuing process is a key part of the line of accountability from the law enforcement and intelligence agencies to the Secretary of State and then to Parliament.
There is certainly a place for judicial involvement, and that comes in the independent judicial oversight provided by the commissioners and the tribunal, who are there to provide a remedy if the Executive has acted outside its statutory powers. I do not believe, however, that judges can reasonably be expected to make decisions on what is or is not in the interests of national security, or that they are appropriately accountable.
The European Court of Human Rights has endorsed the present practice of Executive authorisation, for example in Christie v. UK. In addition, the system was recently endorsed in the latest report of the Interception of Communications Act commissioner, an independent and senior member of the judiciary.
I can assure hon. Members that the present system continues to work well, has safeguards built into it and is subject to judicial scrutiny. I hope that hon. Members will not press the amendments to a vote. If not, I ask my hon. Friends to oppose them.
There is more substantial debate to be had on the matter, but I do not want to detain the House on the point, as we debated it at great length not only in Committee
and on Second Reading on this Bill but in Committee and on Report on the Terrorism Bill. I have summarised what I think are the key points.
Mr. Simon Hughes: There is a reasonable concern about one matter with which the Minister has not dealt. When the agency that applies for the warrant is one for which the Secretary of State is responsible, it would appear that both the applicant, and the person applied to, have the same state interest. That would be the most obvious instance of lack of independent adjudication.
Mr. Clarke: As the hon. Member for North-East Hertfordshire (Mr. Heald) said earlier, Secretaries of State of all parties have taken seriously their responsibility to scrutinise such requests for warrants most carefully.
Mr. Clarke: I am glad that the hon. Gentleman accepts that, as he did earlier. That scrutiny process is genuine, and I do not believe that judges can reasonably be expected to make judgments on what is in the interests of national security. That is quite properly a matter for the relevant Secretary of State. I understand that other countries have other practices, but we have come to the conclusion that I set out.
I was grateful for the support of Opposition spokesmen on Government amendment No. 64. We have taken seriously the points made in Committee by the right hon. Member for Berwick-upon-Tweed (Mr. Beith) and a subsequent letter from the Intelligence and Security Committee reflecting that discussion. I pay tribute to my right hon. Friend the Secretary of State for Defence for the constructive way in which he has addressed those concerns by agreeing to our proposals.
In relation to the warranty proposals, we have carefully considered how to make it clearer that MOD procedures will possess sufficient checks and balances. I have written to members of the Intelligence and Security Committee explaining how we have sought to deal with that. Government amendment No. 64 proposes that the Chief of Defence Intelligence at the MOD should now be the designated office with authority to apply for an interception warrant. It would then fall to a separate unit within the MOD to process and check the warrant application, as happens for similar applications that go to the Home Secretary and other Secretaries of State. I hope that that solution satisfies the concerns that were raised.
Amendment No. 6 concerns the Benefits Agency. I am grateful to the hon. Member for North-East Hertfordshire for technically correcting his amendment in the spirit of the Bill. However, we have debated the issues already. I do not recall my words in Committee in full, but I said that our objections were not just to the incorrect technical wording but to points of substances. I sympathise with the intention to put proper and appropriate measures in place to combat benefit fraud, but providing the Benefits Agency with the power to apply for, and carry through, interception warrants is neither appropriate or necessary.
If the police wish to intercept a communication, they must apply through the National Criminal Intelligence Service. For that reason, individual police forces are not able to apply in their own right. Similarly, if the DSS is working on a serious fraud inquiry with the police, it can
either apply through the police, via NCIS, for an interception warrant or it can apply to NCIS directly. There is therefore no need for the Benefits Agency to be added to that list in its own right. It does not possess the technical capability to intercept communications and we have no intention of giving it that capability. We have not received a formal request from the DSS or Benefits Agency for them to be considered as an intercepting agency. The hon. Gentleman makes a sincere point that we need to make available whatever powers we can to deal with benefit fraud, but the systems that we have in place are competent to do so. I hope that he will not press his amendment; if he is does so, I urge my colleagues to reject it.I urge hon. Members not to press amendments Nos. 1 and 2, and hope that they will welcome the Government amendments that we have tabled in their place. I understand that that is acceptable. We have listened to what has been said, so amendments Nos. 22 and 23 remove from the Bill the power of the Secretary of State to designate by order persons to be added to, or removed from, the list of those who may apply for an interception warrant. That goes further than amendment No. 1, which states that the Secretary of State may not by designated order add names to the list only. Government amendment No. 27 is purely consequential.
Amendment No. 2 calls for a Secretary of State other than the Secretary of State for Defence to authorise MOD warrants. Government amendment No. 64 deals with that point adequately.
The intention behind amendment No. 3 is to ensure that the senior official authorised in clause 7 to issue an interception warrant in urgent cases or under international mutual assistance provisions should not be responsible to, or under the direction of, the person applying for that warrant. The amendment is not necessary for several reasons. First, in an urgent case, the Secretary of State has already
- expressly authorised the issue of the warrant.
I urge hon. Members not to press their amendments, in some cases because the Government have met their concerns and in others because the concerns expressed are misplaced. If they do press them, I urge the House to reject the amendments.
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