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Lord Renton: Before the noble Lord sits down, will he be so good as to explain whether the circuit judge who is to give this authorisation will have to be approached in open court or will he be expected to give it privately either in his room at the courts or at his private residence, or where? That has a great bearing on the matter.
Lord Rodgers of Quarry Bank: I assume that he will be expected to give it privately in precisely the same way as a chief constable would give authorisation today.
Lord Browne-Wilkinson: At Second Reading I drew attention at length--probably at undue length--to the
dangers which are inherent in this Bill in the sense that the Bill's powers trench on what are traditionally known as the freedoms of the Englishman--now the freedoms of the inhabitants of the United Kingdom--in particular on the sanctity of his house.After Second Reading the noble Baroness, Lady Blatch, responded by sending me a letter setting out in detail the Government's response. I am very grateful to her for that letter. It has been deposited in the Library. I shall not risk wearying the Committee by going through the whole of what I said at Second Reading, but I shall, if I may, shortly remind the Committee of what I said. I am very anxious that this should not be seen as a lawyer's playtime because we are talking about constitutional freedom. I hope that all Members of the Committee will have regard to that, not as something which is a lawyer's matter or a political matter, but as something which it is the responsibility of this House and others to protect; namely, not to tolerate the erosion of freedom more than is necessary to meet an objective.
I said at Second Reading, and I repeat, that I am very much in favour of the police having powers to use modern methods of surveillance against serious, organised crime, such as drug dealing, money laundering and white collar fraud. There was some indication in the noble Baroness's letter that I really did not have that view. If that was thought it is wrong. I am not soft on crime, I am tough on crime, but I am steely on freedom. I pointed out at Second Reading that the powers conferred by this Bill go much wider than necessary for dealing with the evils which we are all agreed need to be dealt with.
Serious crime is defined in extraordinarily wide terms--much wider terms than the matters that your Lordships have been considering. I gave as an example a protestor against the Newbury by-pass who within the meaning of the Bill would be engaged in serious crime. As I read the letter from the noble Baroness, the Minister does not deny that within the meaning of the Bill he would be engaged in serious crime. The answer that has been given by the noble and learned Lord the Lord Advocate--it is an answer that recurs--is that it comes within the powers of the Bill, but in practice it will not happen.
I also drew attention to the fact that this was not simply a question of putting bugs in a villain's property. The Bill authorises the bugging, entry and search, and the doing of any other act not simply on the property of the suspected villain but on any property in the area of the particular police authority if in the view of the chief constable it is necessary for the prevention or detection of a crime. Therefore, an employer's premises are liable to be bugged, entered and searched. I gave the example of the investigative journalist who had a valuable lead, such as the laundering of drug money, but, in accordance with ordinary journalistic practice, refused to disclose his source. The police might reasonably think that if they could discover his source they would have a powerful weapon and that therefore they could bug the home of the journalist and the newspaper offices, enter those offices and so on. I suggest that no one in this Chamber believes it is right that that should be done. Why are we conferring powers to do it?
That brings me to the fundamental point directly in issue in this amendment. I hope that the Committee will bear with me for a moment or two while I explain the point. Your Lordships' right and my right to home and property free from state interference and police invasion depends upon one principle only. That principle was established by Entick v. Carrington, although it was thought to exist before that date. The principle is that the state, its officers, the police--anybody--have no greater power to enter your Lordships' property or mine than has any other person. Officers of the Crown cannot invade our property. If they do the courts regard it as illegal. If the act can be detected in time it will be restrained by injunction; if not, it gives rise to damages. That is the only safeguard against state intervention in our privacy. In this Bill that safeguard is being eroded very substantially.
If it is necessary to take that step in order to achieve the desirable object of pursuing serious crime, so be it, but up until now, with the (to my mind) appalling aberration of the extension of the security services in a Bill passed earlier this year, the only right enjoyed by the state to invade property is under the warrant of a court. Why not the warrant of a court in this case? Why should there not be the protection of an independent person?
The noble Baroness in her letter states that the Government have considered that matter but have decided that the independence of the judiciary may be prejudiced by being seen to be involved in the detection of crime, not simply the trial of it. That is not an objection that has ever been put forward to prevent an ordinary search warrant being issued by the judiciary in the detection of crime. It is part of the judicial function.
I have also made inquiries at the highest level to see what inquiry has been made by the Minister of the judiciary as to whether it thought this was a gross prejudicing of its integrity. At the highest level that I could reach, which was fairly high, I am aware of no discussion between the Government and the judiciary as to whether it feels that it is prejudiced by it.
We have heard from the noble Lord, Lord Rodgers, that throughout the common law world, including New Zealand, before the state or its servants enter one's property covertly or openly, judicial warrants are required.
I have seen nothing that has so far been said which shows that that cannot be done in this case. I urge on the Committee that that independent check is preserved because, let us make no mistake, we are not simply legislating for the noble Baroness, the current Home Secretary, or present chief constables, this place is being asked to make a constitutional change. Every time this is raised--and I am afraid that I rudely interrupted the noble and learned Lord the Lord Advocate to ask whether it was unlawful, for which I apologise--we are told not that it is unlawful to do these things, but that in practice it will not happen.
That is no answer to a change of a constitutional kind which confers powers. We may have--I shall not say tomorrow because that it is too dangerous--in the
foreseeable future a different Home Secretary, different chief constables and a different political set-up, where these powers will not be used in accordance with the noble Baroness's assurances. What is being done in this case is to remove the protection. The common law will be able to do nothing if the right to invade our property is conferred on the state, in the form of the police, with no prior approval from an independent party. I suggest that the amendment is essential.9.45 p.m.
Lord Thomas of Gresford: I cannot improve upon the words that the noble and learned Lord, Lord Browne-Wilkinson, has just put forward. Perhaps I may echo one thing that he said: this is most certainly not a lawyer's playground. One feels that the Government fail to understand what they are doing. They fail to understand the constitutional principle which is being breached by their proposals.
Since the 17th century everyone's home has been regarded as inviolate; since the 18th century it has been the rule of the common law that no executive warrant should allow an officer to invade someone's privacy, and here we are, because we face this terrible flood of terrorism, drugs and so on, throwing away basic constitutional freedoms.
We are brought up to believe in an unwritten constitution. I am sure that on the Government side there will be many people who subscribe with pride to the concept that we have an unwritten constitution, because it is said to be flexible. But when that constitution is bent towards the executive, then those of us who, perhaps by our training but for no other reason, understand what is happening, protest. I join with the noble and learned Lord, Lord Browne-Wilkinson, in that protest. I support the amendments.
Lord Lester of Herne Hill: Having heard the noble Lord speak already I shall be brief, but I should like to echo what has been said by the noble and learned Lord, Lord Browne-Wilkinson, and my noble friend Lord Thomas of Gresford. We, in this country, unlike the rest of the Commonwealth and unlike the rest of Europe do not have written constitutional guarantees of our basic rights and freedoms. In the United States the Fourth Amendment to the American constitution provides that, "The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated". That safeguard against unreasonable searches and seizures in the American Bill of Rights drew on a rich theme of English common law experience.
As my noble friend, Lord Thomas of Gresford, has said, "Every man's house is his castle" is a maxim that has been celebrated in England since the beginning of the 17th century. One of the most forceful expressions of that maxim was that of a great Conservative statesman, regarded by Winston Churchill as one of the greatest, William Pitt the Elder, speaking in Parliament in 1763. He observed:
- "The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail, its roof may shake, the wind may blow through it, the storm may enter, the rain may enter, but the king of England cannot enter, all his force dares not cross the threshold of the ruined tenement".
As the noble and learned Lord, Lord Browne-Wilkinson, has said, the most famous of all our English common law cases on this topic is Entick v. Carrington. Perhaps I may say a little about the case to those of your Lordships who are not lawyers or judges and are not necessarily familiar with the great case in our constitutional history. Entick v. Carrington was decided in 1765 and was one of a series of civil actions for damages against state officers who, using general warrants, had raided many homes and other places in search of materials connected with John Wilkes' polemical pamphlets attacking King George III and the Government. Entick sued because agents had forcibly broken into his house and seized his pamphlets, and so on. The Court of Common Pleas, presided over by Lord Camden, the chief justice, gave a judgment which has been treated by successive generations of parliaments, governments and courts as stating a fundamental constitutional principle of personal freedom. Lord Camden declared that the warrant and the behaviour that it authorised was subversive "of all the comforts of society". The issuance of a warrant for the seizure of all a person's papers and not only those criminal in nature, was what he described as "contrary to the genius of the law of England".
Exactly a century ago the American Supreme Court described Entick v. Carrington as a great judgment, one of the landmarks of English liberty, one of the permanent monuments of the British constitution. It described it as a guide to what the framers had meant in writing the Fourth Amendment to the American Bill of Rights. More recently, the American Supreme Court has explained that the requirement that no warrant shall issue but on probable cause means that the police must, wherever practicable, obtain advance judicial approval through a warrant procedure.
The Supreme Court also held comparatively recently that because the protection is not only of property but of personal privacy, so the President of the United States was not able to authorise the warrantless electronic surveillance of persons thought to be endangering national security.
I submit that this House has a responsibility to do its best to preserve our ancient constitutional freedoms and to ensure, as far as we can, that we do not pass legislation that is likely to breach the guarantees of human rights contained in the European convention. Both Houses, like the executive, are bound by the obligations in the convention.
Briefly, the position in regard to the convention is this. The ancient common law right of the individual to respect for his home, personal privacy and private papers is guaranteed by Article 8. The scope of Article 8 has been held to include professional and business activities. In a recent case the European Court of Human Rights decided that, where a lawyer's offices were searched by the German police under a warrant issued by the court but not accompanied by sufficient
procedural safeguards of independence, there was a violation of the lawyer's personal privacy and professional secrecy.If the Bill is passed in its current form, it will almost certainly violate Article 8 of the convention. In my view it is likely to violate it in a number of different ways: in respect of personal privacy; the presumption of innocence; the privilege against self-incrimination; legal professional privilege; and the protection of journalists' confidential sources.
I wrote to the noble Baroness the Minister to express my concern about the absence of any effective remedy for breaches of personal privacy that may arise in the operation of the powers conferred by Clause 89 unless there is some judicial safeguard of the kind contemplated by this amendment. I look forward to the Minister's reply to those concerns. The trial judge's discretion to exclude illegally obtained evidence, referred to earlier by the noble and learned Lord the Lord Advocate, is no remedy for breaches of basic civil rights and liberties that occur before the pre-trial stage.
The safeguards proposed by these amendments tabled in the name of my noble friend Lord Rodgers of Quarry Bank are moderate and workable. They run with the grain of our constitutional heritage and come some way to meet the obligations imposed on Parliament, as well as on government and the courts, by the European convention. They would at least ensure that the draconian and necessary powers contained in the Bill would be authorised by an independent judge. That is the position elsewhere among the democratic nations of other European and Commonwealth states. Surely our Parliament should require no less protection of the rights and freedoms of the people of this country.
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