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Lord McIntosh of Haringey: Does that mean that the noble and learned Lord the Lord Advocate is prepared to agree to it now on the basis that I will gladly support the consequential amendments?
Lord Mackay of Drumadoon: No. What I would agree to now is to pay for the refreshments. I cannot, I regret to say, agree to the amendment.
Lord McIntosh of Haringey: It is now my understanding that we shall get this amendment and the consequential amendments at the next stage. On that basis, I beg leave to withdraw Amendment No. 95.
Amendment, by leave, withdrawn.
Clause 94 [Principal functions of Commissioner]:
Baroness Hilton of Eggardon moved Amendment No. 96:
The noble Baroness said: We now come to a series of amendments which deal with the role of the commissioner and the possible inadequacies of his role. This relates to the earlier discussion we had at some length about the applications for warrants. My preferred solution is to deal with things if they go wrong rather than to change the provisions in the Act about how one applies for warrants in the first place. Over the years police officers applying for warrants have made mistakes. Some of them have been honest mistakes. They have broken into the wrong people's houses or they have done a series of other things which clearly were undesirable. There may also be dishonest police officers applying for warrants.
The role of the commissioner is such that he looks purely at the administrative procedures, as within a judicial review, and says whether they are right or wrong. As I understand it, he has no role to investigate complaints made by the public where the administrative
Lord Mackay of Drumadoon: There is nothing in the provisions of Part III of the Bill which would restrict or limit the present power and functions of the Police Complaints Authority to carry out investigations in response to a complainant making a complaint under Part IX of the 1984 Act.
The commissioner's role will be to review the authorisations given under the provisions of Part III of the Bill and to investigate complaints that authorisations had been given improperly. He will be concerned with the operational decisions of the authorising officers. The Police Complaints Authority, on the other hand, does not investigate complaints about operational decisions. It is concerned with the behaviour or activities of police officers who may have acted in a rude manner or beyond the authority given to them by senior officers. On very rare occasions they may have acted against the criminal law.
If, in the course of his investigation of a complaint, the commissioner finds that there has been intrusive surveillance carried out without the authorisation of an officer, or that, for example, unnecessary force or damage has been caused, or indeed that criminal activity has taken place at the hand of police officers, it would remain a matter for the chief constable to investigate under the normal complaints procedure. That would involve the Police Complaints Authority if necessary and ultimately, in a very rare case, possibly the Crown Prosecution Service as well.
There is nothing in the Bill that would prevent the Police Complaints Authority procedures being invoked. With that assurance, I hope that it will be possible for this amendment to be withdrawn.
Baroness Hilton of Eggardon: I am greatly reassured by what has just been said, although my understanding was that the commissioner's role was purely to apply the principles of a judicial review. When we come to Amendment No. 98 I shall address that point. In that case it sounds as though the actions of police officers when applying for warrants can be investigated in the normal way and that this Bill does not preclude that. On that basis, I withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hilton of Eggardon moved Amendment No. 97:
The noble Baroness said: It would appear from what has just been said about the previous amendment that the commissioner's role is purely to investigate
Similar exclusions have been made previously in relation to the security services, but surely this is not appropriate in relation to the investigation of crime. It is not suggested that issues relating to state security are being affected in relation to this Bill. Therefore, it seems quite wrong that the commissioner's decisions could not be questioned in a court. Therefore, I commend the amendment to the Committee.
Lord Mackay of Drumadoon: As the noble Baroness recognises, this amendment would allow the decisions of the commissioner to be questioned on appeal in open court and would quickly undermine the whole purpose and benefit of certain intrusive surveillance operations. Criminals would seek to exploit the provision to extract information about the nature of the operations directed against them, the equipment used and the techniques officers may deploy. Once that information became widely known--one can imagine the media taking an interest in such hearings--the value of the techniques would quickly diminish as criminals would take measures to avoid being trapped. One of the problems we always face in dealing with serious crime is that in many instances the criminals are one step ahead of law enforcement agencies.
It is unusual but not unique for a commissioner to act in a manner which would not be subject to appeal to a court. But that concern, if it be a concern, is met by the fact that the commissioner will be someone who is a member of the senior judiciary. I suggest that in those circumstances we can be sure without qualification that the commissioner can be trusted to act strictly in accordance with the law. The system has worked well with other interception and intelligence agency commissioners. It would be slightly unusual to have the activities of a commissioner of that senior rank open to review by another judge of similar rank. Such review would inevitably involve further publicity and destroy the element of secrecy which must apply to virtually all intrusive surveillance operations, not only of what actually happened but the fact that they occurred in the first place. Again, I hope it will be possible for the amendment to be withdrawn.
Baroness Hilton of Eggardon: My concern is not the protection of criminals; it is the protection of innocent people who have their houses intruded upon and bugs planted in them. In relation to surveillance devices, one can purchase them at Heathrow duty free shops. A vast range of surveillance and eavesdropping devices are available to the public. The idea that sophisticated criminals do not know about modern technology in this field is a rather naiive assumption that I have met with in police officers before now. Sophisticated criminals are inevitably up to date on these matters.
I do not feel that it is satisfactory that the commissioner's decisions cannot be questioned and that other systems are assumed to have worked perfectly. No complaint has ever been upheld in relation to security services by the system appointed to investigate complaints, and that is not a satisfactory situation. It does not imply that no complaints have been justified; it merely implies that someone in the commissioner's position becomes part of the system.
I feel that the commissioner's decision should be subject to some external form of appeal. I shall return to this matter at Report but, in the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 7 [Investigation of Complaints by Commissioner etc.]:
Baroness Hilton of Eggardon moved Amendment No. 98:
The noble Baroness said: I have already covered most of the points relating to the commissioner. Our feeling is that his role is far too narrow. Merely to review the administrative procedures as within a judicial review is insufficient and he should have a wider role. He should be able to review the motivation and malpractices that can go on when applying for warrants in these delicate situations. I beg to move.
Lord Mackay of Drumadoon: I regret that I do not fully understand what the amendment seeks to achieve. The amendment to Clause 94 seeks to allow the decisions of the commissioner to be subject to appeal or liable to be questioned in court. Yet in Amendment No. 98 the wish is to prevent the commissioner from applying the very principles that would have applied--
Page 37, line 34, at end insert--
("(1A) The powers of the Commissioner to investigate a complaint shall not prevent a complainant from making a complaint under Part IX of the Police and Criminal Evidence Act 1984.").
11.30 p.m.
Page 37, line 42, leave out subsection (4).
Page 67, line 15, leave out ("applying the principles applied by a court on an application for judicial review").
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