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Lord Mackay of Drumadoon: This amendment, if allowed, would do some harm to the structure of the Bill as it is laid out and the intention for which these clauses are being introduced.
Section 64 of the 1984 Act deals with the destruction of fingerprints and other samples taken after an offence has been committed and taken in connection either with the investigation of that offence or the prosecution of somebody for the offence.
In the case of this Bill, the situation is different. There is no need for a particular offence to have been committed before an authorisation can be sought. It can be sought, as Clause 89(3)(a) makes clear, for the purposes of the prevention of crime as well as the detection of crime. Therefore one cannot apply the Section 64 procedure simply, as is suggested.
These clauses are designed to build up criminal intelligence recovered by intrusive surveillance on serious criminals. They do not commit one-off crimes and then retire happily to the countryside. They engage in this activity year in, year out. It would frustrate one of the primary intentions of this legislation if information recovered had to be destroyed after a short period of time.
I am sure that the noble Lord, Lord McIntosh, will recognise a difference between the prosecution of individual offences and intrusive surveillance directed at ongoing serious criminal activity which may run year after year. Given that explanation, I hope it will be possible for the noble Lord to withdraw the amendment.
Lord McIntosh of Haringey: I wonder whether the noble and learned Lord has adequately instructed himself on Section 64 of the Police and Criminal Evidence Act. We are not talking about destruction after some arbitrary period of time; we are talking about destruction after, for example, a case has resulted in acquittal. That is what Section 64 is about. It would not in any way damage the effectiveness of the information or property which is being obtained. I really wonder whether the noble and learned Lord the Lord Advocate ought not to read again his brief and the original
legislation and see whether my interpretation is not closer to reality than his. In anticipation that he might do so, I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
Clause 90 [Authorisations given in absence of authorising officer]:
Baroness Blatch moved Amendment No. 86:
On Question, amendment agreed to.
Clause 90, as amended, agreed to.
Clause 91 [Authorisations: procedure and duration etc.]:
Lord McIntosh of Haringey moved Amendment No. 87:
The noble Lord said: I rise to move Amendment No. 87 and to speak also to Amendments 88, 89 and 90. All of these amendments are concerned with the renewal of authorisation.
The Bill quite properly sets time limits for the renewal procedures under Clause 91. I suggest to the noble and learned Lord the Lord Advocate that these time limits are no more and no less permanent than the time limits in the code of practice which he suggests might require flexibility. Experience might show that these time limits are at least as vulnerable to change as the ones he defended in the code of practice earlier. However, I am not proposing that they should be taken out of the Bill and put into the code of practice. I am proposing that they should be tighter than they are at present.
It is proposed that an oral authorisation--in other words, an emergency authorisation given under Clause 91--should expire 72 hours after it is given, rather than after 15 days as is proposed in the Bill. If the authorities cannot get their act together within 72 hours to obtain a proper authorisation, then there is something very wrong with management.
We suggest as an additional criterion that the authorisation should expire at the end of the period for which it was given. That is to take account of the possibility that the period for which it was given should be shorter than the period of six months provided in subsection (2)(b).
In subsection (2)(b) we suggest that expiry should be three months, beginning on the day on which it was given, rather than the six months proposed. Again, an effective management would ensure that authorisations were given for a period in which they are likely to be used and useful, rather than having a number of authorisations in force, dragging on and clogging up the system, which would otherwise be the case.
Finally, Amendment No. 90 suggests that in a case when it is necessary for a renewal, the renewal by a person other than the original applicant should be for a
I know that what I am saying seems to be very funny to the Government Front Bench. There is a constant state of laughter about all of this, but I think it is serious.
We are trying to increase effectiveness by removing the unnecessarily lax conditions under which authorisation can originally be achieved and renewed. I beg to move.
Lord Mackay of Drumadoon: I commend the noble Lord upon his ingenuity in deploying my own arguments against me. I have to say that we believe that the period stipulated in the amendments is far too short. Perhaps I should also explain that the slight hilarity just witnessed on the Government Front Bench was due to the fact that I was offered a glass of lemonade. I said that I would accept it provided that it was pure lemonade and did not have anything stronger in it.
Lord McIntosh of Haringey: You could not afford the tax!
Lord Mackay of Drumadoon: I am happy to hear that the tax on my favourite drink has gone down; but perhaps we should discuss that later.
At present, property warrants authorised by the Secretary of State under the Intelligence Services Act 1994 and the Security Service Act 1989 last for six months. We would not wish to disadvantage the police and Customs by restricting authorisations to half that period. Unlike the Interception of Communications legislation, where a warrant can be activated almost instantly, it may in some instances take many weeks to set up an intrusive surveillance operation and to gain access to the target's property. While that may not apply in every instance, it will certainly apply in some. Once the operation has been completed, it may take many weeks more for an intrusive surveillance device to be retrieved. For those very sound and practical reasons, we must give the law enforcement agencies a reasonable period within which to complete their operations.
It is important to remember that the provisions included in the Bill provide for the authorising officer to cancel an authorisation as soon as the intrusive surveillance is no longer necessary. The code of practice requires the authorising officer to carry out regular reviews, which should be at no greater interval than one month. We consider that this is the most effective and efficient way of keeping authorisations to the minimum period necessary at the same time as avoiding unnecessary bureaucracy and circumventing the practical problems which such surveillance operations will sometimes encounter.
We accept that the period of authorisation given orally and, in urgent cases, in the absence of the senior officer is greater than the period for dealing with urgent warrants under the two Acts. However, the circumstances of the authorising officers are different. It
We have not specified what rank of officer should make the application for authorisation (as opposed to the authorising officer, in regard to whom, as Members of the Committee will know, there are very strict criteria). We therefore see no reason why we should specify the rank of any officer making an application for renewal. The important aspect is to ensure that the information provided is sufficient to justify renewal by the authorising officer. All applications, whether original ones or ones for renewal must meet the provisions of Clause 89, and this does not need to be repeated "ad longam" in Clause 91. I hope again, therefore, that the noble Lord will feel able to withdraw the amendment.
Lord McIntosh of Haringey: Perhaps I may clear away one possible misunderstanding. Amendment No. 90 does not specify the rank of the authorising officer. It says that if it is necessary to renew the application and the officer who applied for the authorisation is not available, then the officer who replaces him and applies for the renewal should not be of a lower rank than the original officer. We do not believe that an application for renewal ought simply to be left to a junior person, given the fact that the chief officer is almost certainly going to authorise a renewal unless there is very good reason to the contrary.
I should be more convinced by the arguments of the noble and learned Lord the Lord Advocate about the periods necessary for the application to be in force, and for renewal, if I did not know that in other jurisdictions where similar questions arise it is possible to have shorter periods. For example, in the Netherlands, under Article 125 of their penal code the period is four weeks. In this legislation it is six months. In the United States the period is 30 days. We are being quite modest in suggesting a reduction from six to three months. Clearly these jurisdictions have not suffered the problems which the noble and learned Lord the Lord Advocate suggests would be the result.
A system of authorisation and of intrusive surveillance which restricts itself to those cases which are really necessary is more likely to be effective in the pursuit of serious crime than one which is relatively indiscriminate and takes up an excessive amount of the time of National Crime Squad officers who have many other things to do and for whom intrusive surveillance is only one of the weapons available to them in the fight against serious crime.
The amendments genuinely seek to improve the efficacy of the fight against serious crime. It is disappointing to me that time after time the noble and learned Lord the Lord Advocate is unable to accept the reasoning underlying our approach to this part of the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 88 to 92 not moved.]
Clause 91 agreed to.
Page 35, line 18, after ("or") insert ("under or by virtue of").
Page 35, line 41, leave out ("fifteen days") and insert ("seventy-two hours").
11.15 p.m.
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