Regulation of Investigatory Powers Bill

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Mr. Allan: The hon. Gentleman makes an interesting point when he compares the definitions. I can understand that there is a difference between serious and not serious crime, but a curious distinction is drawn regarding economic well-being. Clause 5 refers to

safeguarding the economic well-being of the United Kingdom

but clause 46 uses the words

in the interests of the economic well-being of the United Kingdom.

What is the difference between ``safeguarding'' and acting ``in the interests of''? That is another major question.

Mr. Luff: I am grateful to the hon. Gentleman for anticipating a point that I wish to make—that shows that concern is widely spread. If definitions are to be offered, they should be consistent across the Bill. Clause 21 includes a range of other tests, including tests for public safety, public health, collecting tax and duties. The Minister must explain why the wording of the test of economic well-being in clause 5 applies there and why other wordings and other tests apply elsewhere. I am minded to think that the purpose is necessary but, given the concerns expressed by the conference on the Bill last week, he must give clear explanations.

Mr. David Maclean (Penrith and The Border): I shall begin by alluding to clause 21—we shall not debate it today but my hon. Friends have raised it. It contains insidious provisions; I hope either that we shall delete them or that the tests in clause 5 will be applied. We must have firm assurances from the Minister on several important points raised by clause 21. We need the Government merely to restate what Home Secretaries have stated over the years. We might then be satisfied with the operation of that aspect.

Clause 5(3) contains the grounds on which a warrant might be applied for and issued. Clause 6 lists the organisations that might apply for a warrant. Such a listing of organisations and grounds is an innovation—it does not appear in previous legislation. The Act legitimising the operations of the Secret Intelligence Service gave the narrow grounds on which it could apply for warrants. The same rules applied to MI5. When we established the National Criminal Intelligence Service and introduced warranting for it and for the police, serious crime grounds were added.

I shall make these points differently in regard to clause 6, but what worries me about clause 5 is that we have never before included all the grounds for a warrant in a clause, with a list of all the organisations that could apply for one in another clause. Superficially, it would seem that any of the organisations in clause 6 could ask for a warrant on any ground in clause 5. We have never before had such a mix and match.

I am grateful to the Minister for the letter that he sent to my hon. Friend the Member for North-East Hertfordshire (Mr. Heald), which I received this morning, in which he noted that he had no intention of changing the operating procedures of MI5 or MI6. He stated that they would still operate under normal arrangements, one dealing with foreign matters and one with domestic matters, warranting through the Foreign Secretary and the Home Secretary for their respective operations. That might be a safeguard in some ways.

Clause 6(2)(b) would allow

the Chief of the Secret Intelligence Service

to apply to the Secretary of State for a warrant under clause 5(3)(b)

for the purpose of preventing or detecting serious crime.

Unless there are other safeguards, the organisations listed in clause 6 could apply for warrants on any of the grounds set out in the clause 5. I need to be reassured that that is not the case. Clause 5(5) appears to contain an exclusion to prevent an organisation from asking for a warrant to safeguard the economic well-being of the United Kingdom unless the threat comes from overseas. We need to put on the record what previous Ministers said about the interests of the economic well-being of the United Kingdom.

My quote from Hansard starts with no less a source than the hon. Member for Leyton and Wanstead (Mr. Cohen), who asked the previous Prime Minister

if he will set out in a form which does not jeopardise national security the financial criteria used by the Secret Intelligence Service and the Security Service to assess matters which relate to the economic well-being of the country.

The then Prime Minister replied:

The term ``economic well-being of the United Kingdom'' is a well-known provision, used in the Intelligence Services Bill, the Security Service Act 1989 and the European Convention on Human Rights without definition.

My right hon. Friend the Foreign Secretary gave two examples of where the Secret Intelligence Service might act in this area in his speech introducing the Intelligence Services Bill on 22 February 1994. Official Report, column 157.—[Official Report, House of Commons, 21 March 1994; Vol. 240, c. 4W.]

Therefore, I proceeded to column 157, in which the then Foreign Secretary, Douglas Hurd, said:

There is the provision for action—the tasking of our intelligence agencies—in the interests of the economic well-being of the United Kingdom. Those who have followed these matters know that that is a well-worn provision. It is in existing legislation, and is provided for in the European Convention on Human Rights. It sometimes causes puzzlement as to what it can mean.

Examples of where it might be useful are where there is instability in a part of the world where substantial British economic interests were at stake, or where there was a crisis or a huge difficulty about the continued supply of a commodity on which our economy depended.

The House will notice that the Bill restricts the activities of the SIS and GCHQ for safeguarding the economic well-being of the country to the acts or intentions of persons outside the United Kingdom. The agencies may not and do not get involved in domestic economic, commercial or financial affairs.— [Official Report, 22 February 1994; Vol. 238, c. 157.]

That quote is helpful. I want the Minister to reassure me that what Douglas Hurd said still stands and that he set out the scale of what is covered by economic well-being.

The examples that Douglas Hurd gave are clear. One is coded speak for oil—

the continued supply of a commodity on which our economy depended.

Well, that used to be oil; some economists now argue that oil is not so important. However, I am sure the Minister will agree that those are major considerations. I know that he cannot and will not speculate on BMW, but it would be interesting to discuss whether the definition would cover the decision of the board of BMW to dump Rover—which was known to everyone but the Government—[Interruption.] Well, perhaps one Government agency was doing its duty and knew about it but failed to pass on the information to the Foreign Secretary. It would be interesting to speculate on whether that decision falls within the high threshold of activity described by the former Foreign Secretary.

The SIS will be investigating the big stuff that threatens the economic well-being of the United Kingdom. However, it is not correct to use the term ``threatens''. In 1985, the then Home Secretary said:

As in the case of serious crime or national security, the Secretary of State has to consider that interception is not just desirable. Secondly, interception has to be protective. It must be concerned with safeguarding the country's economic well-being, not with promoting it.

That is an important distinction. We want confirmation that the Minister stands by that, and that that is his and the present Home Secretary's understanding. The former Home Secretary continued:

That means it relates to threats to that well-being.

Thirdly, it is the economic well-being of the United Kingdom which is at issue. By definition, the matter must be one of national significance and cannot be of a trivial kind which is peripheral to that well-being. It is a crucial part of our foreign policy to protect the country against adverse developments overseas.—[Official Report, 12 March 1985; Vol. 75; c. 159-60.]

Again, that confirms what the former Foreign Secretary said on Second Reading of the Intelligence Services Bill in 1994.

Those quotations satisfy me of what the previous Government and the then Home Secretary and Foreign Secretary understood of their duty to safeguard the economic well-being of the United Kingdom. I hope and believe that that has not changed one iota. I do not think that the present Foreign Secretary or Home Secretary have a different understanding. Indeed, I hope that they apply the same criteria. Will the Minister assure the Committee that the Bill will not widen the remit or increase the power of the Security Service or the Secret Intelligence Service, either inadvertently or deliberately, or lower the threshold of safeguarding the economic well-being of the United Kingdom?

The explanatory notes contain a lovely little phrase that suggests that the provisions could apply to ``safeguarding'' tax revenue. One of the organisations listed in clause 6 as being allowed to apply for a warrant is Her Majesty's Customs and Excise. It does a valiant job in safeguarding tax revenue, as many of those who have been put out of business by it will testify. That was an uncharitable comment, but it has happened on a few occasions in my constituency. However, the Revenue may argue that its action was justified.

Mr. Luff: I would appreciate the Minister's clarification. As I read the explanatory notes, clause 5(3)(c) reflects the wording of article 8 of the European convention on human rights, but it is more limited and therefore does not allow for the protection of tax revenues.

Mr. Maclean: My hon. Friend puts it much better than I did. The explanatory notes state:

Clause 5(3)(c) closely reflects the wording of Article 8 of the Convention, though the term in Article 8 is understood to have a broader meaning and would include, for example, the protection of tax revenues.

However, the subsection seems to have a narrower wording. It seems that the provisions of clause 6 would prevent Customs and Excise from going to the Minister for a warrant and saying, ``We want to safeguard the economic well-being of the United Kingdom. Peter Luff Ltd has not paid its VAT and we are therefore suffering a tremendous loss of revenue. We need interception, warrants, the lot.'' Nevertheless, that would not prevent Customs and Excise from obtaining a warrant under subsection (3)(b), because it could conclude that serious crime included avoiding the payment of VAT.

We need some more helpful information from the Minister. He will probably cite precedent. For instance, in 1996, when we were debating the NCIS legislation, his right hon. Friend the Member for Cardiff, South and Penarth (Mr. Michael) pressed me to define the difference between organised crime and serious crime. In answer, I relied on the wise words spoken on Second Reading by my right hon. Friend, the then Home Secretary, who did not define it either. We had a long, round-the-course discussion about what would constitute serious crime, which is wisely not defined in any legislation. It would be helpful to know what Customs and Excise would regard as an economic crime serious enough to justify application for a warrant.

11 am

 

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Prepared 21 March 2000