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9.45 pm

Government amendments Nos. 46 and 47 are a partial answer to our amendment No. 5, which is to bring to the House's attention the need to get rid of what could reasonably be called a Henry VIII clause--the catch-all provision allowing Ministers to do pretty well anything under part II.

Earlier I owned up to the fact that, having not been on the Committee, I had not followed all the twists and turns of the debate. Part II sets out different procedures for directed surveillance, intrusive surveillance and covert human intelligence. The purpose of the Bill is rightfully to bring new forms of surveillance under the Human Rights Act 1998 and legislation before Parliament.

Clause 44 allows the Secretary of State by order to shift the rules that apply to directed surveillance and suddenly to apply them to intrusive surveillance. Rules that at one

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moment apply to surveillance that is not defined as directive or intrusive will be applied to surveillance that is so defined.

My understanding from people who know about these matters is that the boundaries are shifting, and it is illogical to believe that it is right in legislation tightly to categorise directed or covert surveillance. A person who taps in to someone's online bank account may be involved both in covert surveillance and, in almost the same exercise, in intrusive surveillance. It may be better to be honest and say that the categories are wrong. It may be that having different rules and procedures for different types of surveillance covered by part II is an over-prescriptive approach.

We are grateful for Government amendments Nos. 46 and 47, which take out clause 44(1)(c) and thus reduce the number of alternatives to three. In our view, it would be far better to remove clause 44 altogether. Even better than that, we should think again about how we subdivide the different forms of surveillance in part II. Surveillance must be included--we are not arguing against that proposition--but technology will make the boundaries much less rigid, so we are taking the wrong approach.

The issue from the citizen's point of view is not the form of the communication that is being watched, but the fact that they are the subject of that intrusion into their privacy. A more citizen-centred definition and approach in the legislation that took account of circumstances in which the citizen's rights to privacy could be infracted might be better than approaching the law by type of intrusion. I hope that the Minister can be positive on the general case, as well as on the specific amendment to clause 44.

Mr. Charles Clarke: I commend the right hon. Member for Penrith and The Border (Mr. Maclean) for the entertaining and powerful way in which he put his case, as he did in Committee, although I did not concede the existence of the sandwich police in the royal parks. He put his case wittily and effectively.

I think that the right hon. Gentleman acknowledges that we have been open about the public authorities that are likely to use these powers. We are not trying to hide the details; indeed, we believe that there has been a great benefit in publicly identifying the public authorities that use covert investigative techniques and ensuring that their use is properly regulated and controlled, with the same standards applied across the different authorities.

Let me remind the House of the two key purposes of this part of the Bill. We acknowledge that we are simply considering the powers that currently exist--the right hon. Gentleman was kind enough to acknowledge that, too. It is for other legislation, and for other consideration, to determine whether the powers should or should not exist for each of the agencies, and there is an argument to be had in relation to any of them, whether they involve eggs, ice cream or anything else. Where they exist, however, the purpose of the Bill is to ensure that they are covered and are compatible with the European convention on human rights. In the Bill, we are taking a step to bring into the public arena what was not in it previously, and I hope that the right hon. Gentleman will give us credit for that.

As the right hon. Gentleman knows, I am not unsympathetic to the idea of a schedule, although--as he acknowledged--the proposed schedule is defective,

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because it does not include all the public authorities that have to date indicated their wish to continue their use of these techniques. The right hon. Gentleman explained why he had removed some of them. I was not aware that he had such an antipathy to Edwina Currie, but I am interested to discover yet another split within the Conservative party.

Although I will give further consideration to naming the public authorities in a schedule, I am not in a position to do so now, because--this is within the parliamentary convention referred to by the right hon. Gentleman--we are currently discussing with our colleagues in Scotland which functions of the named authorities are reserved and which are devolved. Depending on the outcome of those discussions, the use of the powers by some authorities in Scotland may need to be covered by a Bill to be introduced shortly in the Scottish Parliament. That would affect the shape and content of any schedule or order provided for in this Bill.

I will, however, give the right hon. Gentleman a commitment now. We are seeking agreement with the Scots over the period of the Bill's passage in order to publish a schedule of the type that the right hon. Gentleman wants, because we think that the reasons he has given are powerful. I cannot promise him that we will secure agreement with the Scottish Parliament in time, but we positively seek to do so, both in order to resolve matters and in order to provide information in the form that he recommends. It is not an easy process, and I am grateful to the right hon. Gentleman for being generous enough to acknowledge the work that has gone on in my Department--a Department with which he is familiar--to secure an understanding throughout Whitehall of what is happening, and the progress that is being made. Although, as I say, the process is not easy, it has already brought a lot of information into the public arena--but we are committed to bringing yet more into that arena. I hope that the hon. Gentleman will consider withdrawing his amendment on the basis of my assurance.

None of us knows how the courts will respond to challenges made under the Human Rights Act after October. After lengthy consideration and discussions with the police and others, we have come up with definitions of surveillance that we believe will satisfy the requirements of the convention, but, as was said earlier, it remains the case that the courts may decide that we have got the balance wrong. Clause 44 will allow us to make certain changes to the provisions, with Parliament's agreement, if we have got it wrong. It will, for example, enable something that we currently consider to be directed surveillance to be treated as intrusive surveillance; or, if we need to take account of future technological advances, it will enable us to provide that part II can apply to an activity that is currently not mentioned.

However, we noted the concerns raised in Committee, and therefore agreed to remove the provision allowing redesignation to take place. The clause will now only allow for a strengthening of the provisions, so that activities not currently covered can be covered, and directed surveillance can be redesignated intrusive surveillance. I hope that Members will agree that our amendments strengthen the existing provisions, and will not press amendment No. 5 to a Division.

Amendments Nos. 40, 41 and 44 would allow the necessary orders and rules to be made by the Secretary of State. Clause 39 provides the Secretary of State with an

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order-making power to allow public authorities not currently named to apply for an authorisation. It seems right that we should make that change, which is proposed in amendments Nos. 45 and 48.

Mr. Maclean: I am grateful to the Minister for his customarily courteous speech, and for acknowledging that there is some merit in the amendment and new schedule. Although it was easy to make fun of the egg inspectorate of MAFF, I was concerned that the Minister might conclude that the substance of my remarks was just a yolk, so to speak. It was not. I was going to say that, if the hon. Gentleman could not accept the new schedule tonight, by the time the Bill went to the other place, their lordships might conclude that clause 29 was rather a scrambled mess, might be more hard boiled than we are in this place and might insist that something be done--although I think that I should desist from that line of argument.

I am grateful to the Minister for acknowledging that he is willing in principle to go down the route on to which I have tried to force him. I appreciate the difficulty that he is in. I know how difficult it is to deal with the Scots. He has my complete sympathy in that regard. I only hope that, by the time the Bill gets to the other place, progress will have been made in sensitive discussions with the Scots and the Scottish Parliament, so that he is able to set the provision out in schedule form. Otherwise, I suspect that their lordships will wish to force his hand and do that in any case, although I am grateful for his comments. I therefore have no hesitation in saying that I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Remaining Government amendments agreed to.

Order for Third Reading read.

Madam Speaker: I have selected the amendment in the name of the Leader of the Opposition.

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