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Lord McIntosh of Haringey moved Amendment No. 75:
The noble Lord said: In rising to move Amendment No. 75, I shall speak also to Amendments Nos. 76 to 78. These amendments, as I indicated when I spoke to the last amendment, seek, by restricting its application to those cases which are absolutely necessary, to strengthen the effectiveness of statutory authorisation being given to bugging. It will be clear that the more frequently bugging is used indiscriminately, the less likely it is to provide an effective remedy against serious crime. We are deeply concerned about the provisions in Clause 89 which indicate the circumstances in which an authorising officer can authorise telephone tapping or bugging.
The phrase used in Clause 89(3)(a) is that the authorising officer,
The phrase "thinks it necessary" is deeply defective because it provides no objective test at all. It could never be tested in the courts or by the commissioner as to whether it was reasonable or not to authorise bugging. It is simply a matter that the authorising officer thinks so. That applies in line 12 and also in line 15, where the words used are "is satisfied", which again is a phrase without any objective test. Our alternative phrase "reasonably believes" in both cases adds an objective test.
I turn to Amendment No. 76. The phrase used in the Bill is,
is very vague indeed. Surely the correct phrase is that it is "necessary for". That is what bugging is for. It is only to be used when it is necessary, as has been confirmed by Ministers and by everyone who has sought to justify these statutory powers.
Finally, Amendment No. 78 seeks to extend the phrase,
That again is a phrase which is used in legislation and has been used for many years. It provides some kind of control--perhaps not a very strong kind of control--on
the amendment would restrict it to that action which is actually necessary for the purposes concerned. It stops the possibility of the legislation making lawful, for example, criminal damage or other interference with property.
We believe that to define these matters more closely is not to weaken but to strengthen the provisions of the clause. I commend the amendments to the Committee. I beg to move.
Lord Mackay of Drumadoon: I accept that the amendments are put forward in the hope that they will be attractive to the Government and that they will be perceived as being helpful. I hope that my response in rejecting them will not come across as being dismissive. I accept the spirit in which they are advanced.
When one looks at what is proposed, it is clear that they do not alter the position at all. The first and third of the amendments are, on one view, fairly semantic. One definition of "think" in the dictionary is "believe", and obviously the converse is true. While some mention is made by the noble Lord of an objective test, what the clause requires is that the authorising officer be satisfied. If that judgment is to be scrutinised by the commissioner, it is difficult to see how any less information would require to be available for the officer to be satisfied than for him to reasonably believe a certain view. Indeed, the whole structure of the clause requires authorising officers to proceed on a reasonable basis. If they fail to do so and complaints are made, the commissioner will undoubtedly intervene; equally, in the absence of any complaint, he will deal with such a matter in the reports he is required to make.
Probably the clearest reason for the choice of words used in the provisions to which the first and third amendments are directed is that the Government have sought to mirror the terms which are already used in existing legislation in the Interception of Communications Act 1985 and in the Intelligence Services Act 1994. One finds use of the terms "think" and "is satisfied".
It is always sensible, when one is seeking to achieve the same purpose in legislation, to use similar if not identical words to those that have been used in the past. If a change is made, then courts and lawyers begin to enter the playground that we were discussing earlier and try to argue that Parliament intended something different. That is the reason why the passages to which Amendments Nos. 75 and 77 are directed are in the form that they are.
Turning to Amendment No. 76, again I am not persuaded that the term,
should be replaced by "necessary for". For a start, there is already a "necessary for" test in the first part of the subsection and any further repetition might be thought to be tautologous. We must also remember that these are primarily intelligence-gathering operations against
Finally, as regards Amendment No. 78, I believe that the Government have made it clear in the Bill that authorisation should only be given, and probably only sought, in cases involving the most serious of crimes and where action cannot reasonably be achieved by any other means. The code of practice to which I have already made reference, deals with the issue of what is proportional. Paragraph 2.2 states that,
I suggest that it is better for such guidance to be set out in the code, which is subject to scrutiny in Parliament, rather than in the primary legislation itself. In the light of experience, it would be far easier to bring forward a new code and have that approved than to embark on detailed amendment of primary legislation. Having acknowledged that I appreciate the spirit of the amendments which have been brought forward, I hope that the noble Lord will find it possible to withdraw them.
Lord McIntosh of Haringey: I am not convinced by the semantic parts of the Lord Advocate's argument. I believe that he has unreasonably failed to recognise the importance of the word "reasonably" as providing an objective test which "thinks" and "satisfied" do not provide because those words are in the mind of the authorising officer whereas "reasonably" is capable of being tested in the courts. Subsection (3)(b) uses the word "reasonably", which confirms my view that the amendments are not tautologous or unnecessary. However, I recognise the desirability in most circumstances of legislation being compatible with previous legislation. I recognise the force of the point that the noble and learned Lord the Lord Advocate makes about the wording of the Interception of Communications Act even though I prefer my wording to his. On that basis I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 76 to 78 not moved.]
Lord McIntosh of Haringey moved Amendment No.79:
The noble Lord said: In moving Amendment No. 79, I should like to speak also to Amendments Nos. 81, 91 and 94. In response to the previous amendment, the noble and learned Lord referred to the code of practice which was subject to parliamentary scrutiny. I acknowledge the courtesy of the noble Baroness, Lady Blatch, in seeing to it that we received a copy of the code of practice in time for us to table amendments, as we had requested. These four amendments quote the code of practice and seek to make it available for discussion and--if I convince the Government of it--for inclusion in the Bill.
Amendment No. 79 provides that overheard speech transmitted by the public telephone shall not be the sole purpose of action under this part of the Bill, because that is perfectly well covered by the Interception of Communications Act 1985. The code of practice rightly says that it should be dealt with under that Act rather than this Bill. I cannot see that that will change. It seems to me that it is a stable part of the provision which the Government propose and therefore it ought to be on the face of the Bill rather than in the code of practice.
Amendment No. 81 refers to the detail to be specified by the authorising officer when he approves an application for intrusive surveillance under Clause 89(2). It provides that the authorisation should include the names where known of those to be targeted, the property, the nature of the case and the intrusive surveillance involved and how the authorisation criteria have been met. That also comes from the code of practice. It is the Government's stated intention that that should be included in the operation of this part of the Bill. I suggest to the Government that these matters are also pretty stable and are not likely to be changed. They do not require the flexibility of the code of practice and can perfectly well be included on the face of the Bill.
Amendment No. 91 is concerned with Clause 91 of the Bill. It provides for the review of authorisation:
That is also the intention of the Government. We are not breaking new ground by raising it here and now. It appears to be one of those aspects of the code of practice that is hardly likely to change, certainly once it has gained the authority of government. There is no good reason why it should not be included on the face of the Bill.
Finally, Amendment No.94 is a much more practical element in the code of practice. It provides for an authorisation record to be created giving the date when authorisation is given, the fact that further intrusive surveillance has occurred and the state of play as regards periodic renewals and the results of those renewals. It also provides for a central record to be kept. That is also the intention of the Government. It is not likely to change, and it should be on the face of the Bill. I beg to move Amendment No. 79.
Page 33, line 12, leave out ("thinks") and insert ("reasonably believes").
"thinks it necessary for the action specified to be taken on the ground that it is likely to be of substantial value in the prevention or detection of serious crime".
"that it is likely to be of substantial value in the prevention or detection of serious crime".
"likely to be of substantial value",
"cannot reasonably be achieved by other means",
"and that the action specified is proportionate to the aim sought to be achieved".
"the taking of such action...as he may specify",
"likely to be of substantial value in",
"A person giving an authorisation should satisfy themselves that the degree of intrusion into the privacy of those affected by the surveillance is commensurate with the seriousness of the offence. This is especially the case where the subject of the surveillance might reasonably assume a high degree of privacy, for instance, in their houses".
10.45 p.m.
Page 33, line 20, at end insert--
("( ) An authorising officer shall not authorise action under subsections (1) to (3) if the sole purpose of the action is to overhear speech transmitted by the public telephone or where an application may be made under the Interception of Communications Act 1985.").
"The relevant authorising officer shall review each authorisation at intervals of not more than a month from the day on which the authorisation was given, to assess the need for the intrusive surveillance operation to continue".
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