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Lord McIntosh of Haringey: My Lords, I have no difficulty in withdrawing the amendment. The purpose of the amendment, as the Minister knows, was to get her to talk, on the record, about the way in which the ISC will prepare its report and the consideration that it will give to the new functions.

It is self-evident that if Parliament imposes new functions on a service, it will require supervision and some reporting back of what happens. Like the Minister, I have no doubt that the ISC will wish in its report to include a section or sections referring to the functions which are added. The question of whether or not it is on the face of the legislation is a secondary issue. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 [Warrants]:

Lord McIntosh of Haringey moved Amendment No. 4:

Page 2, line 5, at end insert--
("( ) A warrant issued on the application of the Security Service for the purposes of the exercise of their function under section 1(4) of the Security Service Act 1989 shall only be granted by a judge of the High Court or Court of Session.").

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The noble Lord said: My Lords, Amendments Nos. 4 and 5 deal with the very grave concerns that were expressed in Committee about provision for warrants in Clause 2 of the Bill. At the time we were only able to discuss them, no doubt due to my inadequacy in drafting amendments, on the Motion that Clause 2 stand part of the Bill, and for obvious reasons we did not press that to a Division.

Our concerns were about the difference in regime for warrants between the Security Service and the police forces they are helping in the pursuit of serious crime. The Government acknowledged the factual basis of our concern. There are two regimes for intrusive warrants. One regime applies to the police where there is adequate judicial control of warrants for arrest and search of property, but inadequate control of warrants for intrusive surveillance; that is, entering property and installing bugging devices and the various activities concerned with telephone tapping or the interception of mail.

It is acknowledged that although the police carry out those activities, they see themselves as being at risk of being accused of criminal trespass if they exercise the powers which they have assumed to themselves and which they have been assumed by the public and Parliament to have. It is acknowledged that the powers of the police are not entirely satisfactorily dealt with by legislation. The Minister stated that subsequent legislation would put that situation right. I accept that that is a genuine desire.

The second regime is that which applies to the Security Service, acting in accordance with the functions given under the Act. It is proposed that they should operate in regard to warrants under the same regime which applies to the rest of their functions, the normal functions of a security service concerned with national security and related matters. That regime provides for the warrants to be authorised not by the judiciary but by the Secretary of State.

The Minister rightly corrected me when I said that the Secretary of State can readily delegate his powers under the Security Service legislation. I accept what she said, that it is strictly reserved to the Secretary of State under his hand and that only in emergencies can an exception be made. My objection is not that the Secretary of State can delegate too easily his powers under the legislation. However, my objection is that it is the Secretary of State advised by the Executive rather than the judiciary who have the power to authorise warrants. That situation still remains.

I still believe that the concerns expressed by the noble and learned Lord, Lord Browne-Wilkinson, are valid. I do not know whether he has had any further thoughts since our Committee stage, and I do not know--because I have not discussed it with him--whether he feels able to support this amendment. He spoke powerfully in favour of the principle that intrusive warrants of this kind--warrants which go to the heart of the power of law enforcement agencies to interfere with an individual's privacy and activities--should be judicially authorised rather than authorised on the recommendation of the Executive. That is the basis of Amendment No. 4, and I understand that Amendment No. 5 seeks to achieve the same objective. I beg to move.

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Lord Rodgers of Quarry Bank: My Lords, I want to speak primarily to Amendment No. 5 standing in my name. As the noble Lord, Lord McIntosh, said, its purpose is similar to that of Amendment No. 4 but it seeks to approach the same problem in a different way.

Earlier this afternoon I said that from these Benches we had expressed anxiety about this Bill from the start--from the Queen's speech and at each stage thereafter. But perhaps I can say in parenthesis, as this may be my only opportunity to do so, that I am grateful to the Minister who has been helpful at all stages of the Bill, both on the Floor of the House, in Committee and also in correspondence. I notice that I omitted to thank her for her letter dated 6th June which dealt with an opinion obtained by Liberty and I now do so. Nothing which I have said or will say today bears upon the determination and helpfulness that the noble Baroness has shown in bringing this Bill to the House, nor does it cast doubt on the argument that she has frequently set before us, that the Bill had all-party support in another place, as it does here in so far as it seeks to deal with organised or serious crime as we are now bound to call it.

Though the principle of using the Security Service to fight organised crime is one that attracts us all, in my view, in practice, the consequences of deploying the Security Service in support of the police is potentially alarming. It is that matter to which Amendment No. 5 is addressed. The Minister said in Committee, and may well say again today, that our anxieties are unjustified. She may refer, for example, to long-standing co-operation with Customs & Excise. I am sure that she is right about the experiences of the past and I hope that she is right about the future as well. However, over the years the powers of this Bill, if it is passed as it stands, could turn out to be one step too far.

The noble Lord, Lord McIntosh of Haringey, referred to the remarks made by the noble and learned Lord, Lord Browne-Wilkinson, in Committee. I see that the noble and learned Lord is in his place today. He said,

    "I believe that what is being proposed in Clause 2 of the Bill is a major constitutional shift".--[Official Report, 10/6/96; col. 1530.]

If indeed it is a major constitutional shift, it is something which this House should address. If this House decides that it does not want to amend the Bill, nevertheless it is important that the anxieties of a number of noble Lords are placed on record.

The noble Lord, Lord McIntosh, spoke about his amendment and clearly explained its purpose. In Committee he was succinct when referring to the absence of a judicial trigger, and it is that absence of a judicial trigger that my amendment seeks to remedy, as indeed does his. Amendment No. 5 seeks to fill that gap by requiring a High Court judge to approve the issue of a warrant.

It may be that the amendment is defective in drafting and, if so, no doubt the Minister will say so. But I hope that she will address the substance of the matter. If it is only a question of drafting, I am sure that she will be able to advise the House at the final stage of the Bill on the way in which that can be remedied.

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I hope that the Minister will not say that it would be inappropriate for a High Court judge to second-guess a Minister. We had a debate in your Lordships' House not more than two weeks ago on the whole question of the role of the judiciary, initiated from the Opposition Benches by the noble Lord, Lord Irvine of Lairg. The Lord Chancellor replied to that debate. He said nothing that I could judge on that occasion--5th June--which cast any doubt upon the present arrangements for judicial review, uncomfortable and unpopular though some of the recent outcomes have been for the Government. Therefore he did not seek to dispute the role of the judges in that respect.

I looked at the leaflet which the Minister kindly sent to those of your Lordships who participated in the debate at Second Reading. It refers to the role of the commissioner and says that,

    "The Act establishes the Commissioner who is a senior judge, independent of the Government, who keeps under review the issue of property warrants".
The Minister herself, in the debate in Committee, referred to a judge having an additional oversight--I believe that was her expression. I would be interested if the Minister could explain more fully exactly how, using her words, the commissioner has an additional oversight or, using the words in the leaflet,

    "keeps under review the issue of property warrants".

Whatever the senior judge may do, the fact that he does it at all and that this is part of our present legislation--set out clearly in this leaflet as it was set out by the Minister herself--if a judge is at present responsible for surveillance of the acts of the Home Secretary, I cannot see that there can be any objection to a High Court judge being an extra safeguard for the citizen by being required, in the terms of my amendment, to approve an order of this kind. As I say, it is an extra safeguard for the citizen which is not a trifling matter; it is not ephemeral, but goes to the heart of our fundamental and long-cherished freedoms.

I am sure that your Lordships' House and those who have followed this matter from the outside will be reassured if we introduce an element of this kind into the Bill. It is not beyond the capacity of the Minister to draft such an amendment and it would be a safeguard which we should all welcome. It would not in any way detract from the proper role of the Home Secretary nor, least of all, undermine the privileges and responsibilities of your Lordships' House.

5.15 p.m.

Lord Browne-Wilkinson: My Lords, at Committee stage I expressed inadequately and confusingly my anxieties in regard to Clause 2 of this Bill. I asked whether I had got hold of the wrong end of the stick as to its constitutional impact. I have still not heard anything to suggest that I had. I hope that your Lordships will bear with me as I spell out in more detail what is the constitutional threat that I see this clause presenting.

In this country we have never had a written constitution. I listened to the Prime Minister last night expressing in ways with which I agree his confidence in

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our freedoms; that freedoms are our constitution. Those freedoms are based on the common law of England, Wales and Scotland. Under the common law nobody can enter into my house, take my property or come onto my property in any way save in limited circumstances to which I shall turn in a moment. If the police, a member of the Security Service or of the Army come to my door and I can get to a judge in time, they will be restrained by injunction.

Our basic freedoms and privacy in our homes are secured under the general common law of this country. If you once take those freedoms away nothing is left in our constitution which, to the extent to which the law is effective, can protect our freedoms. The inability of the state under executive warrant to come into my house to seize my goods was established in the pillar of our constitution in the decision of the courts in Entick v. Carrington in 1757, saying that the Minister was in no different position from any other person. I was glad to hear the Minister say recently that it is obvious that the rule of law prevails. So it is and so it should be.

In relation to police matters experience has shown that there have to be exceptions to the inviolability of the home, which is preserved by the common law. So I hope that there can be no misunderstanding that over the years Parliament is sovereign. It can take away our liberties by legislation, I hope after due consideration but not otherwise. In relation to police matters for many years they have had the power to enter and search, but only under a warrant granted by a judge and ahead of the invasion of private rights and on satisfying an independent person that there is a need for that to happen. What has never happened in policing matters hitherto, since Entick v. Carrington, is proposed in this Bill almost by accident; that is to say, an executive warrant enabling entry into English property; the burgling and bugging of it, under executive warrant, which is the very thing that has been fought by the law and all interested in liberty, for many hundreds of years.

I ventilated this matter at Committee, but I still have not had any explanation. All that is said is that under the security services provisions this can be done already. The position is complicated and I shall deal with it as shortly as I can. The functions of the secret intelligence service under the 1994 Act include supporting the prevention and detection of serious crime. Therefore, that part of the Security Service has a function in relation to crime. However, its function applies only in relation to persons outside the United Kingdom. More important and more relevant for present purposes, the right to enter property does not apply to any property inside the British Isles. It is not right that currently the Home Secretary has any right to authorise entry into property in the United Kingdom in relation to foreign intelligence services. Under the Security Service Act, until now the security services have had no policing function, and that is the purpose of this Bill. In their security functions they have power to get an executive warrant from the Home Secretary to enter premises for the defence of national security.

So far as I can see, what has happened casually, in a House which has remarkably few people in it, is to carry over from the national security, twilight, Smiley's

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People world, into the every day life of policing, excessive powers of a kind that this country has always resisted and which are basic to its freedom. Given the way in which the media in recent times occasionally treats judges, I make it quite clear that I am not soft on crime. I am dead against serious crime, especially drug-related crime. Those who know better than I do say that the addition of the security services into the fight against it is a good thing. In that case I am for it. What I am not for is the carry over of powers, which are unhappily necessary in the context of national security, into a policing function enabling a member of the Executive to sanction entry onto private property without prior judicial warrant.

I am speaking perhaps rather too seriously, but I believe it to be a serious matter. At Christmas time there are stickers on cars saying, "Puppies are not just for Christmas". This Bill is not just for this Government and the present position, but forever hereafter until your Lordships seek to repeal it. I am not suggesting for a moment that this Government, the Home Secretary, let alone the Minister, will abuse the new Act, because they will not. But we are not just legislating for this Government or the next, of whatever party; we are actually impairing the constitutional freedoms of the individuals of this country. To my mind that should not be done by a side wind by an empty House--it is empty now, but perhaps it will be fuller later when it comes to voting. People should be considering what is being done.

In the light of what the Prime Minister said last night, I hope that there are people on both sides of this House who, although they support the main structure of the Bill, will think again about whether it is really desirable that in policing matters there shall be rights to bug and enter, covertly and not covertly, exercisable for the future against people corresponding to those protesting at the Newbury by-pass and the poll tax and against whom warrants under this new Act can be issued, even although not by this Government. But not all governments in 100 years' time are going to be scrupulous. I hope that there are Members of this House, including the Government, who think that this is a step which deserves further consideration before it slides through, almost by a side wind.

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