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Lord McIntosh of Haringey: My noble friends and I have not felt it possible to put our names to this group of amendments. We strongly support the proposals of the Government for statutory control of what is regrettably necessary to combat serious crime; namely, telephone tapping and bugging--in other words, intrusive surveillance. We very much regret that necessity, but recognise it as a fact of life.
Our approach to this matter has not been through the issue of authorisation of the tapping, but, as we saw in previous amendments, to attempt to strengthen the statutory powers contained in the legislation by more closely defining the circumstances in which they are to be used. We believe that if the authorisation for intrusive surveillance is properly defined, if the code of practice is effective and if there is no temptation to misuse these statutory powers, then we shall provide both a more effective fight against serious crime and more effective protection for the rights of the individual. Therefore, the concentration of our amendments this evening and in the course of the Bill has been on those matters to which I referred rather than the issue of authorisation.
However, I ask the noble and learned Lord the Lord Advocate to consider in his reply the point referred to by the noble Lord, Lord Lester, and specifically made in the opinion given by Mr. Michael Beloff QC and two other lawyers, which referred to the relevance of the
European Convention on Human Rights. I shall not take up the time of the Committee by reading out the full 18-page judgment. However, I shall read two paragraphs from it. I ask the noble and learned Lord, to respond to those paragraphs.
- "If enacted without substantial modifications, the proposed executive warrant power looks certain to face challenge under the Convention and eventual condemnation by the court".
- "In our opinion, it is seriously contrary both to this country's unwritten constitutional traditions and to the law of the Convention to remove from judges the function of supervising and authorising when property and privacy should be intruded upon to prevent or detect crime".
That is the opinion of very senior counsel--and that opinion deserves a response from the Government.
10 p.m.
Lord Ackner: I wonder whether the noble Lord could explain why he is not in favour of advanced judicial approval as apparently occurs throughout the Commonwealth and other common law countries?
Lord McIntosh of Haringey: I can only repeat what I have said. Our approach to this matter is to seek to strengthen the provisions of this part of the Bill by limiting its application to those crimes which are really serious and to those requirements for authorisation which are really necessary. If we can achieve that, it is more important than considerations of procedure.
Lord Browne-Wilkinson: What if the noble Lord cannot achieve that? The fate of his limiting amendments as concerns legal privilege has not been happy. Assume that the Government remain adamant and do not produce any limiting, where are we going to get to?
Lord McIntosh of Haringey: The noble and learned Lord requires an answer from me now. I cannot give that answer. We shall listen carefully to what the Government say in the course of this debate--as we have listened carefully in all the debates so far--and we shall consider what position to take at that time.
Lord Renton: This has been a most interesting debate on a very difficult problem. There is one factor which has not so far been referred to and perhaps my noble and learned friend the Lord Advocate will consider it when he replies. The point concerns the time factor. If we are to have serious crime prevented and detected in the way that the public require--and which is very necessary--we must make sure that the police in their attempts to prevent and detect crime do not face delays imposed by Parliament. I hope that I am not exaggerating this delay factor, but if one had to find a circuit judge, either in his private room at the courts or in his home, might not that be sometimes a serious delay
in detecting serious crime? That is the only other factor that we should invite my noble and learned friend to consider.
Lord Bowness: Perhaps I may ask the noble and learned Lord the Lord Advocate one further question to assist me as someone who is not an eminent lawyer, as other speakers have been tonight. It has been suggested that entry onto premises for these purposes would in some way be quite unprecedented. I understand the concern and the potential constitutional implications of that; but is that in fact so unprecedented? Is there a not a whole raft of legislation which enables officials of all kinds, from all sorts of undertakings and authorities, to enter into property and upon property without the consent of the owner or the occupier? Not necessarily in connection with crime, but in terms of the precedent of entry onto private property, will the noble and learned Lord the Lord Advocate tell the Committee how many other officials and Acts allow this to happen?
Lord Mackay of Drumadoon: Perhaps I may deal first with the point raised by my noble friend. As he correctly says, there are many instances where officials from all kinds of organisations--public utilities and others--have power to enter premises. They do so not for anything as serious as the investigation and prevention of serious crime but for the purpose, for example, of checking the meter when one has not paid one's electricity bill. Off the top of my head, I could not say how many such examples are to be found on the statute book. However, it is a good example of an instance where Parliament has decided that the greater public good deserves some infringement of the important principles upon which this most interesting and useful debate has focused.
In responding to the various contributions that have been made, it is important for Members of the Committee to be reminded that the police have been exercising powers of intrusive surveillance for some time. On Second Reading the noble and learned Lord, Lord Browne-Wilkinson, raised the question of the legality of such activity. Whether or not it has been legal in the past is, in one view, neither here nor there. The whole purpose of the Bill is to put intrusive surveillance on a statutory basis and to strengthen the public protection by making the police powers explicit and legally defined--and, importantly, by subjecting police action to review by the commissioner.
Despite the fact that such surveillance has been taking place since at least 1984 under non-statutory guidelines which have been lodged in the Library of this place from that time, it has not given rise to the practical problems, let alone the outrage against constitutional conventions, that some noble Lords very genuinely feel to be the case. Equally, while the Interception of Communications Act which has some parallels at least with this Bill (involving as it does the protection of a judicial commissioner but no judicial warranting) may not be the favourite type of legislation for every Member of this place, it has not attracted the criticism which some of the arguments tonight have suggested.
All Members of the Committee who have spoken have been concerned about the protection of the public at large, on the one hand, against the activities of those who engage in serious crime and, on the other hand, against unwarranted intervention into their homes by police officers and others who would be entitled to act under this legislation. However, a balance undoubtedly must be struck. As I am sure the noble Lord, Lord McIntosh, would concede, the correct balance is being struck to a very large extent. The noble Lord would at least join me in acknowledging that the Government are somewhere towards achieving such a balance.
As my noble friend Lady Blatch made absolutely clear on Second Reading, judicial warranting was one of the options which was considered most carefully when the Bill was being brought forward. However, having looked at the matter carefully, the Government do not believe that it is appropriate to involve the judiciary in the procedures set out in Clause 89. With intrusive surveillance the primary focus is the gathering of intelligence. As Clause 89(3) makes clear, one has in mind necessary action when one is looking to obtain something of substantial value in the prevention or detection of serious crime.
There is therefore an important distinction between the authorisations which the Bill is designed to allow, and search warrants which can be applied for and issued under the Police and Criminal Evidence Act 1984 where the application follows upon the commission of an offence. Furthermore, search warrants are documents which are required to exist and required to be disclosed to the occupier or owner of premises being searched at the time the warrant is executed. Authorisations, on the other hand, will of necessity remain private and as they are being used are most unlikely to be disclosed to anyone other than the police on the one hand and the commissioner on the other. As I have already indicated, they will be used frequently for the prevention of crime long before any particular offence may have been committed.
In some instances that one can imagine, the authorisation having been used and some information obtained, evidence will then be recovered from other sources, the accused or defendant will stand trial, and he may be prosecuted and convicted in court without anyone being aware of the existence of the authorisation. Equally, there will be other investigations which may continue for some considerable time where again it would be of the utmost importance to keep the existence and use of the authorisation absolutely secret.
Recognising that this is a clause which introduces provisions of importance, the Bill also contains important safeguards. These are found in the provisions in Clause 93 onwards relating to the commissioner. As I have already observed, he must be someone who has held or presently holds high judicial office. He will have a most important role to play in reviewing whether those who are empowered to grant authorisations have acted properly in the exercise of the powers which are given to them under this Bill.
Perhaps I may respond further to a point raised earlier by the noble Lord, Lord Lester of Herne Hill, about remedies available under the Bill. At that stage I should
have made it clear that paragraph 3 of Schedule 7 sets out certain remedies to quash the authorisation and order documents to be destroyed, and to pay compensation. I should properly have dealt with that in a little detail earlier.I do not think that the role of the commissioner can be underestimated. He will have the opportunity of reviewing all the authorisations which have been granted and, on a nationwide basis, ensuring that the powers set out under the Bill are operated on a uniform basis.
The noble Lord, Lord Rodgers, asked how many authorisations we might be dealing with. I do not have a complete answer to the various questions he asked. I am more than happy to undertake to write to the noble Lord with full details. However, to give Members of the Committee some indication of what is involved, I understand that during the year 1995 in England and Wales chief officers of police approved a total of 1,300 authorisations. That figure is obviously a fraction of the number of search warrants granted throughout the country during that period. I do not have available to me tonight the number granted and refused in Scotland or Northern Ireland. However, I undertake that the point will be responded to.
The Government consider that there are other disadvantages with judicial warranting. That arises primarily when one considers the provisions of Clause 89(3)(b) which requires the authorising officer to be satisfied,
- "that what the action seeks to achieve cannot reasonably be achieved by other means".
That undoubtedly would involve a consideration of what other investigative techniques and what other operations could be mounted by the police rather than the intrusive surveillance which is sought.
I would suggest that it would be extremely difficult indeed for a circuit court judge or a sheriff in Scotland to make an informed assessment of that without an in-depth knowledge of the particular police force, its resources, its personnel and whatever information it was getting from other agencies. It is peculiarly an operational matter, and were members of the judiciary to become involved in an assessment of that there is the concern that it would be perceived to be a threat to the traditional impartiality of judges, placing them too firmly in the law enforcement camp rather than in the role of presiding over trials which they have traditionally performed.
I accept that search warrants are frequently granted by members of the judiciary. Some of course are granted by justices of the peace who may not perform any judicial role as such but may, as I have sought to stress, have granted them after offences have been committed, when the applicant for a warrant can come before the circuit court judge or the sheriff and explain the offence that has been committed and whatever else requires to be explained. In such an application there is no need whatever to embark on an assessment of whether a search warrant is unnecessary and what it is sought to recover could be recovered by other operational means. I submit to your Lordships that that is what moves the
position on from the one we have traditionally dealt with and that is why it is necessary if we are, in developing this quite justified attack on serious crime, to move the show on from what we have traditionally regarded as inviolate. I venture to suggest that, perhaps understandably, the noble Lord, Lord McIntosh, is reluctant to give too--
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