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Lord McIntosh of Haringey: The Minister will not be surprised to learn that I am unhappy with that reply not only because it shows a misunderstanding of the nature of the amendment and indeed the nature of the concerns underlying the amendment, but also because it presents a totally distorted picture of the way in which the amendment was moved and what it states. The Minister is saying that the nature of the involvement of the Security Service in law enforcement in the prevention and detection of serious crime is such that one cannot have what she called a rigid definition of serious crime.
There is no rigid definition in this amendment. There is no rigid definition in Clause 2. The definition of serious crime, which is given in Clause 2 and which we have adopted without change, is so broad as to be virtually non-exclusive. The Minister is right in saying that it refers only to offences which involve the use of violence or,
- "substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose".
However, there is an absence of a definition of what is meant by violence. As my noble friend Lord Williams of Mostyn suggested, it could be just common assault. There is an absence of a definition of substantial financial gain. Is it substantial financial gain to the putative criminal, or substantial financial loss to the putative victim? There is an absence of any restriction whatever on the nature of the purpose which a large number of persons could be pursuing. It could be anything from the Gordon Riots to the Peterloo massacre, or any public order event of the past 200 years where there could easily be a minimal offence of disturbing public order when the purpose itself was not only not illegal but could indeed be admirable.
Lord Renton: I am grateful to the noble Lord for giving way. I say with great respect to him--I am trying to help--that I think he has overlooked the limits of
Clause 1(1). It introduces a new subsection referring only to "prevention and detection of serious crime". At that stage there would seem to be no purpose in limiting the activities of the security services to prevention and detection.However, Clause 2 deals with the issue of warrants. The noble Lord is quite right, and the Government have anticipated that we need to be a little more precise and have a definition. That is what the Government have done. If the noble Lord were to confine his remarks to prevention and detection, it would be more to the point.
Baroness Hilton of Eggardon: Perhaps I may intervene. I believe that the noble Lord, Lord Renton, overstates the case. There is clearly a need to restrain the security services in their activities. Constitutionally it is extremely important that they should not transgress on to what are generally clearly matters for the police. It is essential that the security services should have a clearly distinct role and this intrusion into police matters should be carefully controlled, defined and monitored. That should not be allowed to be as broad or as wide as is being suggested. It is a very slippery slope down the path of non-accountability and potential injustice, not only to the public and the police but also the security services.
I believe that the Bill is seriously flawed. This amendment is an important restraint on what could be an extremely dangerous situation and a constitutional impropriety.
Baroness Blatch: Perhaps the noble Lord will allow me to intervene. That is a serious travesty of an interpretation of the Bill. First, the noble Baroness knows that the Security Service will not in any event act independently of the police. It will be tasked by the police, or the work will be done in support of the police or the other agencies mentioned in the course of the debates. The service will be acting only in that capacity.
My noble friend is right. In the early stages of any investigation we want there to be relative flexibility. Otherwise, as I said in speaking to the amendment, it is likely that the early, important activities of investigating and working for the prevention of crime will be thwarted by some legal definition as to whether the interpretation that noble Lords propose in the amendment would restrict the service because the task did not fall neatly into the category of the definition included in Clause 2.
Lord McIntosh of Haringey: That seems an utterly deplorable approach to the drafting of legislation. The Minister gives us an assurance that the Minister's intention in increasing the functions of the Security Service is to deal with major issues such as drugs, fraud, and so on. I accept that; I am grateful for it. If that were what the Bill said, we should be a good deal happier.
However, I believe that the definition is far wider than the Ministers give credit for. The noble Lord, Lord Renton, specifically said that my point about legitimate public demonstrations was invalid because the function had to be for the prevention and detection of serious
crime. Without the definition of serious crime, one might have a perfectly legitimate demonstration by a trade union, environmental organisation, or whatever, and the police might call in the security services to install surveillance cameras to check people off against lists of what they would call troublemakers--members of Left-wing groups, supporters of the British Council of Churches, and all kinds of subversive groups--on the grounds that by doing so they might be assisting in the prevention of the serious crime of breach of public order.Where a large number of persons are present in pursuit of a common purpose, there is the definition in the amendment of "serious crime". The absence of a definition of serious crime in Clause 1 makes the situation even worse. In effect, the Minister is saying, "Don't pay any attention to what the Bill says. The Bill deliberately does not have a definition of serious crime. Rely on the probity of Ministers". I rely on the probity of present Ministers. When we make laws, I do not rely on the probity of all possible future Ministers. I rely on our law to be properly discriminatory and to define the purpose and scope of legislation. This provision does not do that. The definition does not do that. The lack of a definition in Clause 1 makes the situation even worse.
If I had not already said that it was a probing amendment I should be sorely tempted by the inadequate nature of the Minster's reply. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
3.45 p.m.
Lord McIntosh of Haringey moved Amendment No. 2:
The noble Lord said: This is a second attempt to pursue the general line of argument with which I may already have wearied the Committee. However, it is important that there should be a statutory expression for the controls under which the Security Service, like the police service, will operate in the prevention and detection of crime. The police operate under the provisions of the Police and Criminal Evidence Act 1984. For the purpose of this amendment, in particular they operate in accordance with Part VI which relates to codes of practice. There are important schedules attached to Part VI; Part VIII relates to evidence in criminal proceedings. Beyond that, the codes of practice which are subject to lesser parliamentary scrutiny are essential to our confidence in the police force and the rules under which it collects and presents evidence and makes possible prosecution of offenders.
We need to be sure that when the Security Service acts in accordance with the provisions of Part I of the Bill, it will be acting also in accordance with the same rules of procedure that apply to the police. I should have thought that that point was self-evident. I beg to move.
Lord Williams of Mostyn: I support the amendment. If the Government's purpose is, as the Minister indicated, for other agencies to act in support of the police, there must be contemplated circumstances in which agency employees or personnel would be obliged to give evidence. Alternatively, there will be applications by what the Minister calls, I think, clever defence lawyers.
Lord Harris of Greenwich: "Unscrupulous".
Lord Williams of Mostyn: I was not sure whether there was complaint that one was clever or that one was a defence lawyer. I am obliged for the correction.
There will be a serious question about disclosure, and the discovery of documents--the usual questions that we have discussed and with which the Minister has dealt on many earlier occasions. There must be some regulation in the interests of the security services, defendants, proper transparent prosecutions and the judicial process. Unless one has a regime which is structured in the way indicated by the amendment in the name of the noble Lord, Lord McIntosh, there will be serious difficulties; and it will not simply be unscrupulous defence lawyers who seize upon them.
Lord Campbell of Croy: We are dealing with codes of practice. This is the moment when I should say something about the issue of warrants to the police.
Since the Second Reading on 14th May, a senior member of the judiciary has commented publicly on the absence of legislation on eavesdropping devices, also known as "bugs", suggesting that the whole area needed to be cleared up and, where necessary, legislation introduced. I pointed that out in the Second Reading debate; and that telephone tapping by authorities had been closely regulated for many years. But there has been nothing to control bugging, although it is far more intrusive and offensive.
The latest annual report of the Commissioner, the noble and learned Lord, Lord Nolan, was issued last week for the year 1995, under the 1985 Act. It records the number of warrants issued by the Home and Scottish Secretaries during that calender year. I remind the Committee that over 22 years ago I was for four years a Secretary of State personally considering whether warrants be issued or not in each case. This annual report gives a satisfactory picture, but in the light of what the noble Lord, Lord McIntosh, was saying on the last amendment, on a subject where we all share his concern, I quote from paragraph 9 of the report. It states that the number of warrants issued under the counter-subversion head remains very small. That is good news. From the Government's response to the debate on 14th May, it seems that the subject of the use of bugs by police is to be covered in the forthcoming Bill in the next Session. We will have to wait until it
In replying to the debate in the middle of May, my noble friend Lady Blatch said that this would be part of a privacy Bill, but that, as we know, the Government are not proposing such a Bill at present. I draw attention to the fact that there is still a gap where eavesdropping devices are concerned with no codes of practice and no legislation. It requires to be filled, and since the debate I have had the support of a very eminent member of the judiciary.
Page 1, line 9, at end insert--
("( ) In carrying out its function under subsection (4) above, the Service shall be subject to the provisions of Parts VI (Codes of Practice) and VIII (Evidence in Criminal Proceedings) of the Police and Criminal Evidence Act 1984."").
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