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Lord Lester of Herne Hill: If I may interrupt the noble and learned Lord the Lord Advocate, he has responded to my question as to the remedy available for a misuse of these powers by referring to Schedule 7 dealing with the investigation of complaints by the commissioner. May I ask the noble and learned Lord whether I am right in saying that in place of the right to a remedy for damages for trespass or breach of personal privacy, which has been our law in one form or another since Entick v Carrington, there is to be instead a remedy by a commissioner not exercising judicial power, and not a judge, who will be treating the matter on judicial review principles and will award compensation, not damages, not exemplary or exaggerated damages. Am I right in saying that that is to be in place of the ancient right which has been part of our freedoms for two centuries? That is the only remedy for a misuse of these powers which otherwise we would be regarded as tortious.
Lord Mackay of Drumadoon: The remedy for the granting of an authorisation which the commissioner deems it appropriate to quash is to be found in paragraph 3 of Schedule 7 to the Bill. Whether the acts which justify the commissioner quashing the authorisation and granting some remedy may also give rise to some other remedies in law would be a matter which would have to be discussed having regard to the circumstances of the case. My understanding is that when the Appellate Committee of your Lordships' House recently looked at this issue in the case of Kahn, it specifically reserved the issue of whether there was a right to privacy, the breach of which would give rise to certain remedies, as an issue which it anticipated it would have to look at in the future, but until it came before that committee it was wrong for it to express any opinion. If that was a correct view, as I am sure it was, it would be wrong for me to go any further at the Dispatch Box this evening.
Lord Lester of Herne Hill: The advice of the noble Lord the Lord Advocate is the only advice that the Committee can take on the matter. If the Committee considers it important that we should not pass a Bill which is in breach of the European Convention on Human Rights, am I right in understanding his answer to be that, if the Appellate Committee were to develop the Khan principles into an enforceable right of personal privacy, we should be complying with the convention because that will provide a safeguard which is lacking in this Bill? If that is not what he is saying, then I am afraid I do not understand the relevance of what he has just said.
Lord Mackay of Drumadoon: I am not prepared to discuss at the Dispatch Box what may happen if the
Appellate Committee forms a view of a case which has not yet come before it. I repeat that this Bill sets out certain remedies which apply when the commissioner quashes an authorisation. What other rights may flow to the affected home owner because of any intrusive surveillance of his house would be a matter to be decided on the facts. One could imagine all kinds of situations where physical damage or possibly even personal injury to some of the occupants was caused. Whether or not that was covered by the remedies available to the commission would have to be looked at as and when he had made his adjudication and no doubt the court would determine accordingly.As I understand the draftsman's intention, while it is clear that the decisions of the commissioner should not be subject to appeal or liable to be questioned in any court, the fact that payment of compensation is ordered by the commissioner does not exclude any other remedies which an affected proprietor may have.
As far as the position under the European convention is concerned, as the noble Lord, Lord Lester, has informed the Committee, a letter was sent to my noble friend dealing with the issues which may arise under the convention. Perhaps I may inform the noble Lord, Lord McIntosh, that I have not seen the opinion of Mr. Michael Beloff and others, and I understand that neither have my officials. Understandably, therefore, I do not propose to respond in detail to the short passages that were read out to me. In general terms, as I hoped I had made clear earlier in the debate, the Government consider that the provisions of the Bill would comply with the convention in dealing not only with issues of personal privacy but also important principles such as the presumption of innocence, the privilege regarding self-incrimination, legal personal privilege and the protection of journalists' confidential sources.
As I understand it, Mr. Beloff's opinion indicates that, if this Bill passes in its present form, challenges before the European Court are inevitable. As I observed earlier, it would be for that court to decide whether or not there had been any breach of the convention. All I can do is to give the Committee an assurance that these issues have been looked at. Had they not been, mistakes might have been made which would have led to unfavourable decisions.
Moving on, I stress again that the experience gained from the use of the 1984 guidelines has been very useful in framing the draft code of practice which is available. I say again how useful it would be if noble Lords who had comments to make on that draft were minded to draw that fact to the Government's attention. The code will eventually have to come before this Chamber and we would rather hear your observations and criticisms sooner than later.
Having regard to the structure of Clause 89, the positive reason to which I invite the Committee to pay regard is that the officers who will be acting as authorised officers will be extremely senior. They will have been in the police or Customs service for many years; they will have had extensive training; and no doubt they will have passed various examinations and
sat in front of selection boards. I suggest that they are uniquely qualified to deal with the organisational assessments which are an implicit part of subsection (3).It is no criticism of circuit court judges or sheriffs to say that they have not had that practical experience. They are trained in other disciplines and have worked in the criminal justice system from a different perspective. The whole criminal justice system depends on people of different disciplines and different experience working together.
I recognise that Members of the Committee feel strongly about the issues which undoubtedly arise in this clause; but I hope that the Committee will be persuaded that the Government have got right the balance that has been struck in this part of the Bill. For that reason, I hope that it will be possible for the noble Lord, Lord Rodgers, to withdraw his amendment.
Lord Ackner: Before the noble and learned Lord sits down, I wonder whether he can help on one matter. He said that the Government decided that it was not appropriate to involve the judiciary and gave as his reason for the non-involvement of the judiciary that it would be perceived to be a threat to the impartiality of the judges.
Have the Government made any inquiries into the Commonwealth jurisdictions where the senior police officer makes his application in private to the particular member of the judiciary charged with considering the application to discover whether there has been any problem in relation to the perception of a threat to the impartiality of judges? If so, what has been the result of his inquiries?
Lord Mackay of Drumadoon: I cannot provide a detailed answer to the point raised by the noble and learned Lord at this juncture. I have certain information about the views that certain members of the judiciary may hold, but I would rather not say anything about them without being quite clear where they come from and on what basis, confidential or otherwise, they were passed. But I undertake to investigate the matter both in relation to the United Kingdom and further afield and I shall seek to satisfy the point that the noble and learned Lord raised.
However, I stress that, while there may be judicial warranting and other common law jurisdictions, it is perfectly possible for common law jurisdictions to go about things in different ways, seeking to achieve justice in the way they feel best and happiest with. It may be that while there is a lot to learn from other countries, one does not necessarily need to follow precisely the same route if, for other reasons, the view is taken that a different route might be preferable. That, I submit, is the situation that we are probably in in this case.
10.30 p.m.
Lord Rodgers of Quarry Bank: I say with great reluctance that I find the reply of the noble and learned Lord the Lord Advocate very disappointing and unconvincing, particularly in so far as he sought to deal with the question of impartiality, which has again just
been raised by the noble and learned Lord, Lord Ackner. I agree that the debate has ranged very widely. But, as my noble friend Lord Lester made clear, these are moderate and workable proposals. I said in the course of my opening remarks--I share the view expressed by the noble Lord, Lord McIntosh of Haringey--that I reluctantly support statutory powers in this area.My amendment was addressed simply to the question of judicial authorisation. As I understand it, though I must read the Official Report carefully, the Lord Advocate simply added to the argument on impartiality that we heard previously from the Minister two propositions which need to be examined. I hope I do not misrepresent him but at one stage he seemed to be implying that judicial authorisation might be more difficult to keep secret than an authorisation undertaken by a police officer.
He said also that it was extremely difficult for a circuit judge to make a decision on an operational matter. As far as I could judge from his remarks--they ranged very widely--those are the only two arguments which he brought forward to add to those we heard on Second Reading. They must be examined carefully because there has been a great deal of confusion in the debate and in the mind of the Lord Advocate in regard to the argument for powers of this kind and the much narrower question to which my amendments are addressed--that is, by whom those powers should be exercised.
For that reason we cannot put these matters to rest tonight and can expect a fuller and further debate during succeeding stages of the Bill. However, will the Lord Advocate address, if not by intervention now, later, the question raised by the noble and learned Lord, Lord Browne-Wilkinson, in relation to whether there had been discussion with the judiciary of the arguments put forward by Ministers to justify their choice of options? As I understood it, no such discussion had taken place. I shall be grateful if, perhaps by letter, the Lord Advocate will deal both with that point and a point raised at the end of our discussion by my noble friend Lord Lester about practice in the Commonwealth.
Apart from the disappointment at the reaction from the Government Benches I was disappointed beyond what I had already said by the response of the noble Lord, Lord McIntosh of Haringey. If we were not in Committee in your Lordship's Chamber, he might have used the phrase, "My hands are tied". I hope that before we next discuss this matter he will seek permission from his party's spokesman in another place, on the basis of the powerful arguments put forward today, to adopt a more liberal and generous attitude towards the substance of the amendment I placed before the Committee.
I ask of the Government Benches that there should be some response and that they should take time to think again or come forward with better arguments, and of the Opposition Benches a move in the direction of the case which has been made very strongly today, both from these Benches and from the Cross-Benches in your Lordship's Committee.
I am tempted, because I see a good assembly of Members present tonight, to seek the opinion of the Committee. But, in the hope that if we return to this
matter on Report there may be a larger number who are disposed to agree with the powerful arguments put forward from these Benches and elsewhere, I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
[Amendment No. 74 not moved.]
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