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Baroness Blatch moved Amendment No. 10:
On Question, amendment agreed to.
Baroness Blatch moved Amendment No. 11:
On Question, amendment agreed to.
Baroness Blatch moved Amendment No. 12:
The noble Baroness said: My Lords, in moving Amendment No. 12 I wish to speak also to Amendments Nos. 13, 21 and 22. These amendments ensure that the directors general of the National Criminal Intelligence Service and the National Crime Squad will have access to the same appeals tribunal machinery as the permanent police members of these services, and will also place them on an equal footing with their senior colleagues in police forces.
Your Lordships will recall that following a government amendment in Committee, Clauses 38 and 82 of the Bill already ensure that permanent police members of both services will have access to a police appeals tribunal when facing dismissal or a requirement to resign. It was always our intention that this should include the directors general themselves who are permanent police members holding the rank of chief constable. These further minor amendments are necessary to bring the directors general within the scope of Clauses 38 and 82. They will in this way ensure that, as with the other permanent police members, the directors general will have access to the same appeals tribunal machinery as their senior colleagues in police forces.
As I said in Committee, similar provision is not needed for police officers seconded to NCIS or the National Crime Squad because they would
On Question, amendment agreed to.
Baroness Blatch moved Amendment No. 13:
On Question, amendment agreed to.
Clause 53 [Removal of Director General by the Authority]:
Baroness Blatch moved Amendment No. 14:
On Question, amendment agreed to.
Schedule 5 [Levies Issued by NCS Service Authority]:
Baroness Blatch moved Amendments Nos. 15 to 18:
The noble Baroness said: My Lords, I beg to move Amendments Nos. 15 to 18 en bloc.
On Question, amendments agreed to.
Clause 66 [Pensions and gratuities]:
Baroness Blatch moved Amendments Nos. 19 and 20:
The noble Baroness said: My Lords, I beg to move Amendments Nos. 19 and 20 en bloc.
On Question, amendments agreed to.
Baroness Blatch moved Amendments Nos. 21 and 22:
The noble Baroness said: My Lords, I beg to move Amendments Nos. 21 and 22 en bloc.
On Question, amendments agreed to.
Clause 86 [Liability for wrongful acts of constables etc.]:
Baroness Blatch moved Amendment No. 23:
On Question, amendment agreed to.
Lord McIntosh of Haringey moved Amendment No. 24:
Page 11, line 30, after ("Constabulary") insert ("or the National Crime Squad").
Page 11, line 33, at end insert ("or the Director General of that Squad").
Page 16, line 11, leave out from beginning to ("is") in line 12 and insert ("Where the Director General of NCIS, or a police member to whom section 9(2)(a) applies,").
Page 16, line 13, after ("37") insert (", he").
Page 23, line 18, after ("to") insert ("section 66 or to").
Page 62, line 18, leave out ("regulations") and insert ("an order").
Page 62, line 18, leave out ("require") and insert ("requires").
Page 62, line 44, leave out ("the Secretary of State may prescribe in regulations") and insert ("may be prescribed").
Page 63, line 30, leave out ("may specify") and insert ("considers appropriate").
Page 27, line 17, at end insert--
("(1A) The NCS Service Authority may--
(a) pay, or make payments in respect of, such pensions or gratuities as it may determine, with the consent of the Secretary of State, to or in respect of any persons who are or have been the Director General of the National Crime Squad or police members of the Squad to whom section 55(2)(a) applies;
(b) provide and maintain such schemes (whether contributory or not) as it may determine, with the consent of the Secretary of State, for the payment of pensions or gratuities to or in respect of any such persons.
(1B) Before exercising its powers under subsection (1A), the Authority shall have regard to any provision made under the Police Pensions Act 1976 or section 25(2)(k) of the Police Act (Northern Ireland) 1970.").
Page 27, line 20, leave out ("Authority's officers or employees") and insert ("persons mentioned in subsection (1) or (1A)").
Page 30, line 41, leave out from beginning to ("is") in line 42 and insert ("Where the Director General of the National Crime Squad, or a police member to whom section 55(2)(a) applies,").
Page 30, line 43, after ("81") insert (", he").
Page 33, line 4, after first ("of") insert ("section 23 above or").
Before Clause 91, insert the following new clause--
(".--(1) Where an entry on or interference with property is in respect of premises and the consent of the occupier has not been obtained to that entry or interference, an authorisation by an authorising officer given in accordance with section 91 shall, subject to subsection (2), not take effect unless it has been approved by a Commissioner appointed under section 95.
(2) Where it is not reasonably practicable to apply to a Commissioner for advance approval under subsection (1), the authorising officer may authorise the action under section 91(2) but must as soon as reasonably practicable apply to a Commissioner for approval, specifying the reasons why it was not reasonably practicable to do so before.").
The noble Lord said: My Lords, with this amendment, and the amendments grouped with it, we move to Part III of the Bill which is almost vulgarly known as intrusive surveillance although the title of this part in the Bill is rather more bland. I apologise to the House for the lengthy list of amendments which are grouped for consideration together. I hope that your Lordships will forgive me if I start by explaining why there are so many and what they do.
Amendment No. 24, which, in our view, is the key amendment in this group, refers to prior judicial approval of intrusive surveillance in the form of approval by a commissioner appointed under Clause 95. In order to make that amendment workable it is necessary that there should be not one commissioner but a body of commissioners. The provisions of Clause 95 and other clauses which provide for a body of commissioners rather than a single commissioner are contained in a whole series of amendments starting with Amendment No. 51.
I should say at this stage that the Government have also produced a version of this series of amendments which starts with Amendment No. 50 and includes all the amendments grouped with it. The Government's intention in increasing the office of commissioner from one person to a body is virtually identical to ours, except that they propose that there should be a chief commissioner and other commissioners rather than a body of more equal commissioners as we propose. I
However, our amendment on prior judicial authorisation by a commissioner also requires that the whole role and remit of the commissioner, or the body of commissioners, should be strengthened. Amendments in this group seek to do that.
Amendment No. 65 refers to the need for an assurance that the commissioners would have enough staff to do the job that is required of them. I do not propose to move Amendment No. 69, which would provide that the commissioners rather than the Secretary of State would decide on the size and composition of the staff.
My Amendment No. 74 refers to the need for the commissioner to review every authorisation which is given. That, in turn, is echoed by government Amendment No. 76. I do not feel strongly about whether my amendment or the government amendment should be the one accepted.
Amendment No. 77 provides that any complaints against the decision of the commissioner should be considered under rules laid down in the relevant section of the Police and Criminal Evidence Act 1984.
Amendment No. 80 would restore the right of appeal of a complainant against the determination by a commissioner. Finally, although I summarise, Amendment No. 89 would remove the restriction in the commissioner's activities which require him only to operate under judicial review criteria. It provides instead that he should act, as necessary, in accordance with the circumstances in the case rather than having to rely on a decision, of which he is disapproving, being perverse.
In addition to those amendments in my name, the noble Lord, Lord Rodgers of Quarry Bank, has indicated that he wishes Amendments Nos. 26, 29, 34 and 39, which stand in his name, to be considered in the same debate. I readily agree to that. It is clearly sensible that the different options for judicial authorisation of intrusive surveillance should be considered together. The noble Lord will recognise that if my amendment is carried that does not mean that his amendments are consequential upon my amendment. Indeed, they propose a different version of authorisation from that which I propose.
With that rather lengthy introduction, for which I apologise, I return to the debate on the most fundamental issue, which exercised not only Members of the Committee but also a large part of the broadsheet and tabloid press and the people of this country over the past weeks. I do not in any way regret that debate. When I spoke on this matter in Committee I said that we had not made up our minds on a number of the issues which give rise to this debate. I hope that your Lordships will agree that in our position today we have recognised the force of the arguments put forward in particular the arguments against the Government's Bill.
I recall the words in Committee of the noble and learned Lord, Lord Browne-Wilkinson, who said that, contrary to what otherwise might be suggested, he was strong on crime. The noble and learned Lord said that he was steely on liberty, and supported the surveillance powers which are made statutory in this Bill and which have been exercised without statutory authority for a very considerable time. However, he said at the same time, and I agree with him, that the statutory basis, as opposed to the guidelines which were issued first in 1977 and then in 1984, is very much better than action under administrative procedures, as was provided in the previous guidelines.
The noble and learned Lord said that the fundamental principle must be that officers of the Crown cannot invade our property, and if they do so their action would be illegal. That, I believe, is the fundamental issue that your Lordships wish to address and which we, in these amendments, now address.
The fundamental point is that there should be not just independent judicial authority for intrusive surveillance, but that such authorisation should be in advance. That is the difference between us and the Government despite the welcome amendments, to which I shall return in a moment. However, if there is to be judicial authorisation of intrusive surveillance, that judicial authorisation must be effective in the sense that it is not merely nominal formal authorisation but real authorisation by somebody who knows what he or she is doing. It also must be effective; it must not hold up recognition of the need for being tough on crime, for effective policing in pursuit of the prevention and detection of serious crime, a view which we all share.
That is why there are a number of differences in our approach and that of the Government, and of the noble Lord, Lord Rodgers of Quarry Bank. The first difference is that our amendment is more concerned with premises than with property. I am not a lawyer but there are legal definitions of premises and property, and in common parlance we all know what we mean. The term "premises" includes private residential homes. But it also includes workplaces, doctors' surgeries, lawyers' offices, the confessional, lock-up garages, hotel lounges and all places in which the consent of an occupier would have to be obtained before it would be possible to plant a bug without trespass and without committing an offence. Therefore, we believe that the prior judicial authorisation procedures should cover all premises, not just private residential premises, to which most of the judicial concern has been addressed.
At the same time we do not believe that it would be appropriate for prior authorisation to apply to all property. Property includes, for example, vehicles. Intrusive surveillance of vehicles would include not just the bugging of a vehicle but also the tagging of a vehicle in order to determine where it is and where it is going. There is no difference in principle between that and following a vehicle either in another vehicle, a helicopter, or by some other means. There is no issue of civil liberty involved in that.
The issue is a practical one: can a judge or a body of judges be expected to authorise such everyday activities as the tagging of vehicles? It is for that reason that we have chosen to address in our amendment premises rather than property.
Secondly--this differentiates us from the amendments of the noble Lord, Lord Rodgers of Quarry Bank--we recognise that from time to time occasions arise when the police must take emergency action, where there is simply no time to go to a judge for approval before intrusive surveillance takes place. If, for example, there has been a police action against a group of drug smugglers and those people have holed up in a house where it is expected they will make plans for the next shipment, how to dispose of the last shipment, or whatever it may be, it is no good the police waiting until they have been to a judge for authorisation before they plant a bug. If they are to catch those people before they go away they will have to put a bug in straightaway. Our amendment provides that a chief officer of police can authorise a bug under those circumstances, but that he has to go as soon as is practicable to a judge for retrospective authorisation. That is an important proviso in reaching a balance between effective policing and civil liberties.
There is then the question of who the judges should be. The noble Lord, Lord Rodgers of Quarry Bank, proposes that they should be circuit judges. As I understand it, there are 540 circuit judges. There may be about 2,000 such authorisations a year. That means that on average each circuit judge concerned may be authorising four a year. Under those circumstances, can circuit judges acquire the expertise which enables them properly to question the case put before them by a chief officer of police? I suggest not.
It is preferable to have a body of people--in this case the surveillance commissioners--which is made up of senior judges--in other words, of a higher rank than circuit judges--who are recruited for that purpose, of whom there are, by the Government's admission, enough to do the job effectively, who will know what questions to ask, who will know what problems to identify, who will be much more confident in allowing or disallowing applications from a chief officer of police. That third difference from the proposals of the noble Lord, Lord Rodgers, again identifies the balance that we strike between civil liberties and effective policing. It meets both sides of the argument.
I turn now, briefly, because we shall have a later opportunity to debate them, to the Government's proposals. On Thursday of last week, shortly after we tabled our amendments, the Government changed tack considerably. I pay tribute to them for their flexibility in this. They acknowledge, as I have already said, that there should be a body of commissioners--I nearly said a corps of commissioners--rather than just one commissioner. That is welcome. They also propose in Amendments Nos. 76, and 101 to 103 that there should be a procedure of immediate notification to the commissioner of any authorisation of intrusive surveillance, and that under certain circumstances there should be the power to quash an authorisation if it is inappropriate or illegal. Those are welcome changes.
I in no way wish to criticise them, but they do not provide for the fundamental principle of prior judicial authorisation of which the noble and learned Lord, Lord Browne-Wilkinson, reminded us, and which we have been reminded many times in recent weeks is critical to civil liberty in this country.
We are concerned not just that serious crime be pursued, but that we preserve the principle first enunciated, although not originated, in the case of Entick v. Carrington: the Englishman's home is his castle, and that officers of the Crown or the state have no right to intrude into that home without some independent justification or authority. I believe and commend strongly to your Lordships that this package of amendments provides a proper balance in a way that neither the Government's proposals nor the proposals of the noble Lord, Lord Rodgers of Quarry Bank, do. I beg to move.
3.45 p.m.
Baroness Blatch: My Lords, the noble Lord has sat down, but perhaps I could say technically "before the noble Lord sits down", and ask him about a point that was not covered by him in presenting the amendment, which is pretty important to the debate. As I understand it, by Amendment No. 80 the noble Lord has removed Clause 96(4). If that is the case, it suggests that the commissioner, who, as the noble Lord knows, will be or will have been a senior High Court judge, could be called to court. Is that what is being suggested? He could be called to court to give evidence to justify his decision to authorise intrusive surveillance. If that is true, it would be a new departure. Would it not remove the separate function between the judiciary and investigative agencies and bring the judiciary wholly into the investigative process.
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