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Lord McIntosh of Haringey: My Lords, I understand the Minister's difficulty. We are on Report. It is true that, although this amendment was moved in Committee, that point was not raised from the Government Front Bench. The House is now considering the matter for the first time.
The fact that chief constables have in the past been called to court to justify their intrusive surveillance activity has been caused primarily because they were operating under administrative guidelines rather than legislation. The extended role of the commissioners that we propose largely removes the necessity for that sort of justification in court. In the Government's own proposals, and our proposals, there is a whole series of measures relating to the accountability of the commissioners, both in their action at the beginning with prior authorisation and in the way in which they consider the whole range of intrusive surveillance activity.
Nothing in our amendment takes away from the responsibility of the chief officer of police, which is provided in Clause 91, to satisfy himself that he is acting in accordance with the law in authorising his subordinate's application, which in turn goes for
approval to the commissioner, who is a senior judge. Our view is that there is no conflict between what is proposed for or by the commissioner and the rule of law.
Baroness Blatch: My Lords, again, with the leave of the House, that was not the question I asked. I was asking the noble Lord whether the authorising officer--in this case the commissioner, who would be or would have been a High Court judge--would be available to be called to the court to defend the authorisation and become embroiled in the criminal investigation, as opposed merely to defending the authorisation that was made. In other words, chief constables can be brought into court to defend their decisions and to answer questions that drag them straight into the investigative process. Is the noble Lord saying that this particular commissioner would not be available to do that or that in certain circumstances he would be?
Lord McIntosh of Haringey: My Lords, the Minister is in danger of raising matters which she should raise in her speech rather than by interrogation across the Table. The answer to that question is that we have deliberately not changed the wording in Clause 91; in other words, the authorising officer is still the chief officer of police, but he needs the prior approval of the commissioner. Therefore there is no question of the commissioner being called into court.
Lord Rodgers of Quarry Bank: My Lords, as the noble Lord, Lord McIntosh, has explained, for the convenience of the House I have grouped Amendment No. 26 with this group. I should perhaps make it clear now that, irrespective of the decision of the House on Amendment No. 24, my present intention is to test the opinion of the House on Amendment No. 26 when the time comes.
I say first to the noble Lord, Lord McIntosh, that I welcome his support, even at this late hour, for prior judicial authorisation of electronic surveillance. There is always joy when a sinner comes to repentance. I will not dwell on the long and clearly painful process through which the noble Lord has gone; I only say that I sympathise with him in relation to the difficulties created by his master in another place. Without pursuing that further, I only say--I must make this point--that my regret is that the practical proposals to which he has just referred in moving this amendment fall a long way short of what I would have hoped, given the conversion on the principle itself.
The noble Lord, Lord McIntosh, fairly represented the differences between his amendment and the one standing in my name and that of my noble friend Lord Lester, but I want to refer first to his and then turn to Amendment No. 26.
In the first place, I believe that we are all agreed--and this is a point which has been made constantly by the Minister herself--that decisions on bugging must be implemented with the minimum justifiable delay. That is a point she has made before and will no doubt make again. I do not want to dispute that argument from these Benches, but this would simply not be possible if some 1,300 cases, the figure for England and Wales in 1995
to which the noble Lord, Lord McIntosh, has already referred, are to be referred to three or some other small number of commissioners. The noble Lord has not explained the actual process by which recommendations would be made by police scattered across the country and by customs officials to the judges, the commissioners, who would have to make the decisions.On the face of it, the recommendations and the decisions would be made by fax, which is hazardous in itself and, more important, excludes any of the arguments which will necessarily have to take place between the authorising officer, if a judicial one, and the police who make the recommendation. So far as I can judge from what we know and from what the noble Lord has said, this process would be cumbersome, unreliable and slow. It would be very unlikely to work.
The noble Lord himself drew attention to this second point: the recognition in subsection (2) of the new clause that there are circumstances when it may not be "reasonably practicable"--they are the words in the amendment--to authorise action through a judicial source. I find this profoundly disturbing, because if we believe that urgent action is always necessary and it is necessary to reconcile operational needs with the need for judicial authorisation, then to have a let-out subsection of this kind is very dangerous. It will certainly allow the police sometimes to act without judicial authorisation; and, beyond that, given that the police will have to give approval and that the commissioners will have to give approval at a later date, it seems to me to be a formula for indecision and muddle. Indeed, it would be the worst of all worlds.
The third point is the most powerful one and one which I hope your Lordships will examine this afternoon. That is the dual role for the commissioners which now seems to be proposed. In the Bill as it stands, the police decide, the commissioners review. In Amendment No. 26, my amendment, the police recommend, the judge decides, the commissioners review. But in the amendment on the Marshalled List by the noble Lord, Lord McIntosh, the police recommend and the commissioners decide, except when the police still decide, in which case the commissioners approve and the commissioners review. Therefore, the commissioners will be both making the decisions in most cases and then reviewing them after an interval--reviewing their own decisions.
If it is right to believe, as we do, that the police should not recommend and approve, then it must be wrong for the commissioners to be in a position of deciding and then reviewing their own decisions. I believe that this is a very serious flaw indeed in the new clause put before the House by the noble Lord. He may not have intended it to have that effect. We shall wait and see. But if indeed he means what he says in this amendment, that alone is a sufficient reason for saying that these proposals do not meet the need for judicial authorisation without introducing another and very dangerous drawback.
I turn to the amendment standing in my name, put down in Committee but not then pressed to a Division. I say to those noble Lords who have not previously
given their mind to this very difficult matter that it takes nothing away from the fight against serious and organised crime to which this Bill is mainly addressed. It does not deny the need for electronic surveillance for bugging. (It is an ugly word for an ugly deed.) It does not deny the need for this in the fight against crime. It does not oppose giving statutory form to a practice previously regulated only by Home Office guidelines.The amendment is clear, it is simple, it is narrow. It says that if we are to incorporate into statute law the right of the police to bug our homes, a judge should make that decision. I well understand that in drafting the Bill Ministers on advice believed that it was reasonable to incorporate into statute arrangements which they understood had already worked well. I make no heavy-handed criticism of Ministers on that point. However, we all caught up with the full implications of this matter in our debates in Committee. Six weeks have since elapsed, and I am sorry that there has been no ministerial change of heart on the essential central principle of judicial authorisation.
The first argument against judicial authorisation was put by the Minister herself on Second Reading on 11th November. She said:
- "There is the danger of the judiciary becoming too involved in the investigative process and of its impartiality being called into question".--[Official Report, 11/11/96; col. 837.]
- "We have taken account of what several judges who have been involved in this type of work have said".
There is then the argument that judges are busy people and do not have the time. They are certainly busy people, but as the noble Lord, Lord McIntosh, said, there are 500 circuit judges in England and Wales; there were 1,300 police authorisations in 1995, and indeed there were 2,100 throughout the United Kingdom in 1995, including those recommended by police and customs officers. This means, as the noble Lord himself said, fewer than three authorisations per head, which hardly looks like an intolerable burden, although obviously, and I concede this, the load would not be so evenly spread and some judges would have a considerably heavier load than others.
What I do not understand, but the noble Lord, Lord McIntosh, may return to it at a later stage, is why the circuit judges are expected to develop some special expertise. The recommendation will come to them. There will, I hope, under the proposal in Amendment No. 26, be dialogue between the police and the circuit judges and the circuit judges will make a decision. Although the Minister herself has argued that
operational experience seems to be relevant, without that being substantiated in any significant way I cannot see how it carries weight.The third argument is that in an operational matter--that is the expression used by the Minister--the judges will lack the relevant practical experience, which I suppose means experience which the noble Lord, Lord McIntosh, says they will have no time to gain. But, as I said, it is not at all clear why the judges, faced with the recommendation from the police and with the guidelines in front of them, will not be competent to make such decisions.
The noble and learned Lord the Lord Advocate said in Committee that the circuit judges would not have in-depth knowledge of a particular police force. He did not explain why they needed such in-depth knowledge of a particular police force and it may well be that he will do so today. But until that is clear, again I can see no objection of substance to a circuit judge being competent to perform that function.
As for the commissioners, to whom I have already referred, let me say again that it is, in the words of the noble and learned Lord the Lord Advocate, for them to review whether those who have granted authorisations have acted properly. That is entirely retrospective, after the bugging has taken place and any damage has been done. I do not believe that the commissioners can be expected, under the Bill as written, to perform the function of judicial authorisation, which is not what they are there for. But, as I said, I feel that there are grave objections to the commissioners both authorising bugging and then reviewing their own actions, as the noble Lord, Lord McIntosh, would have it.
Finally, faced with the fact of successful judicial authorisation abroad, the Minister said in her letter of 18th December--for which I thank her:
- "We understand that such systems tend to be slow and bureaucratic".
The Minister said in her letter of 18th December that:
- "given our system and traditions, it would not be right to extend the role of the judiciary in this way".
Very rarely does the Daily Telegraph agree with the Guardian, The Times with the Observer, the Daily Mail with the Financial Times or the Economist with the New Statesman--and there are others. They all say that this Bill as it now stands must be amended to provide for judicial authorisation. But, if noble Lords are disinclined
to be influenced by the unanimity of newspapers, let me remind them of what their own committee on delegated powers said in its report of 13th November last. Of the powers in Clause 91 of the Bill it said that many of them would characterise them as "a constitutional change". The issue is as important and grave as that.Perhaps I may just offer one final word. This is a House of Lords Bill. It started in your Lordships' House and has not been discussed in another place. We have a duty--why else are we here?--to send it forward after scrutiny in what we believe is the best possible form. If we amend the Bill there is no conflict with another place. We are not second-guessing the views of elected Members. I hope that Amendment No. 26 will be judged on its merits. I hope that your Lordships' House will choose judicial authorisation. If so, I hope that your Lordships will believe that the amendment standing in my name is the best one to support.
4 p.m.
Lord Callaghan of Cardiff: My Lords, I rather regret that we have had to start this debate on the basis of arguing which is the better of two propositions put forward by the Opposition. So far as I understand it, we have not yet convinced the Government of the essential principle that is involved. That is what I want to draw attention to, while thanking my noble friend Lord McIntosh and also the noble Lord, Lord Rodgers, for putting forward propositions, both of which are worthy of consent. I happen to believe that perhaps the amendment of my noble friend Lord McIntosh is better, but I could cheerfully support the amendment of the noble Lord, Lord Rodgers. Indeed, I go further and say that I could support the Government's amendment. All of them--some are more timid than others--ought to be supported by us all.
But the point of principle to which I return is a very simple one. I do not believe that chief constables should be given statutory authority for authorising the warrants when they intend to commit entry upon the premises of a private citizen. The security services have to secure warrants in order perhaps to intrude on the privacies of an enemy agent, and I do not see why we should give less protection to our own citizens by not requiring chief constables to follow the same rule.
Therefore I see two principles. I am willing to support any amendment by anybody--I do not believe that this is particularly a party matter; as the noble Lord, Lord Rodgers, said, it is a constitutional issue--which will secure first that a person other than a chief constable is required to authorise entry upon private premises and, secondly, that that authorisation should be prior to the event itself. Those are the essential elements to which, in my view, we should seek to convert your Lordships.
I appeal to your Lordships as well as to the Government. The Government have shown a willingness to move. The amendments put down last week were a move in the direction of the public disquiet that has been shown since this issue first came to our notice. I must apologise for coming to this Bill at such a late stage. I confess that nowadays I do not follow
these matters so closely as perhaps I should. It was not until the noble and learned Lord, Lord Browne- Wilkinson, drew attention to it that I recognised the importance of this matter. It is a procedure that to me is completely novel. That may surprise some of your Lordships. I was astonished to read--the number seems to vary--that 1,300 warrants for England and Wales and 2,000 if Scotland is included are issued every year. I was absolutely flabbergasted to learn that. Indeed, one question that I should like to put to the noble Baroness, Lady Blatch, is to ask how the figures have increased. Does she have figures for previous years? I should be very glad to hear them. The figures for which I ask, if they are available, will show the rate of increase. What has been the rate of increase?
We all understand that serious crime has increased, as has its sophistication. In no way do either of the amendments put forward seek to deny the police the powers that they should have. But in my judgment they do not impede the police in performing their duties and getting the authorisation that is required.
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