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Baroness Blatch: My Lords, I wonder if it would help the House to put forward information which could be used during the course of the debate. When the noble Lord was Prime Minister in 1977-78, there were for England and Wales between 500 and 600 in that last year of the Parliament and there are 1,300 now. So there has not been a disproportionate increase in activity.
Lord Callaghan of Cardiff: My Lords, I shall come to that point later, although there are perhaps some aspects to which I can refer now. To be absolutely frank, I was not aware that guidance had been issued in 1977. I was referring to the fact that in 1967, when I was Home Secretary, I had no recollection of any such warrants being issued. I have no recollection at all. I was certainly not informed that chief constables were issuing their own warrants. So it is a practice that has grown up certainly after 1970 when I ceased to be Home Secretary. I understand that the Home Office was asked what the record was during my period as Home Secretary and, alas, the records could not be discovered. I assure the noble Baroness that I did not take them with me.
It is my profound conviction that the warrants must have started--certainly in any numbers--round about the 70s. I had no knowledge at all that it took place and one of the things which worries me is that the practice did grow up. No doubt somebody went to a Home Secretary--I do not know whether it was a Labour Home Secretary or a Conservative Home Secretary--and said, "This is a very important matter. We must have a warrant to execute it." And he said, "I agree. I have the authority to issue such warrants, as I do for others." My guess, and it is only a guess--I am trying to take the House into my confidence--is that from that a mountain has grown and we are now facing a situation which was totally unknown 30 years ago.
Lord Renton: My Lords, perhaps I may--
Lord Callaghan of Cardiff: My Lords, I shall not give way to the noble Lord. If I give way I shall take
too long and be sidetracked down all sorts of byways. I want to make an essential point. I hope he will forgive me.I welcome therefore the Government bringing forward proposals to put this matter under statutory authority. The Government deserve credit for putting it under statutory authority. Indeed, the Government deserve credit for bringing the security and intelligence services all within the mandate of parliamentary authority by putting this matter in the form of statute. I willingly say that to the noble Baroness.
Since my days in the 60s, public opinion has moved very considerably in the direction of more openness and requiring more information. And, fair play to the Government, they have moved with public opinion. We also have to thank Mr. Peter Wright who, with his no doubt exaggerated account of how he burgled and bugged his way across London, certainly awakened me as well as others to what can happen when there is laxity at the head of MI5 and when officers there are not properly controlled as they should be. That is one of the real reasons why the head of the services in all cases should be subject to statutory authority.
The care and intensity with which Home Secretaries consider applications for warrants cannot be underestimated. I see the noble Lord, Lord Carr, nodding in agreement. He has had similar experience in this matter. When I had to sign warrants, both as Home Secretary and later as Foreign Secretary, if I was unsure I would have had discussions with the Permanent Secretary, Lord Allen of Abbeydale. We would sometimes ask the head of the security service for more information and request that he come and see us. I remember particularly consulting Sir Maurice Oldfield. At weekends we would walk around the grounds of the country house which was then conferred upon me in order that we should not be overheard by anyone when discussing these matters. We accepted most warrants, but rejected some after very careful consideration.
I do not know that chief constables have a monopoly of wisdom in these matters. If the security and intelligence services and GCHQ are required to secure warrants before they may invade private premises, why should the police be the only service excused from that responsibility? I cannot see the logic of it. I certainly do not believe that it is wise that we should so exempt it now that the matter has been brought into the public purview. Many of us have learned what we did not know before, and we are proposing to give it statutory authority.
Perhaps I may be permitted one more observation. This weekend I have been engaged in discussions with a number of representatives from countries in central and eastern Europe. I hope this is not far fetched, but let me tell you what they said. We had been discussing their problems on transition to full democracy. We rehearsed all the standard requirements of a democracy--an independent judiciary, a free press, the capacity to change government, all the things that we all know and use on these occasions. But one issue arose which had not been at the forefront of my mind, although it should have been, and I put it now to your Lordships. Gradually
it became clear that, whoever they were, they all prefaced these essential instruments with one other matter--the importance of having trust restored in the police service. The right to personal privacy, the right to security and the right not to be invaded by the secret police were things they considered a precondition to ensuring that institutions worked.That is very true. That is not just a truth related to the secret police in eastern Europe. It applies much more widely, although certainly not to the police in this country. The police service knows that I would never think of it in that way. But there must be trust in the police. They must not be given powers which are not in some ways checked and accountable. If you give statutory authority in that way, no Home Secretary--Mr. Howard or anybody else--is going to abuse the powers. But what can we see down the road? Who knows what can happen? By the usage of such powers, the familiarity of such powers, gradually an exceptional case may become a more general rule.
This is a matter of the utmost constitutional importance. I will cheerfully vote for my noble friend's amendment. I could even be persuaded to vote for the amendment of the noble Lord, Lord Rodgers, because I believe that even the slightest protection in this field is better than nothing. As there is argument about what is the best way to give protection, I hope that the Government will undertake to review these matters most carefully before the next stage is reached in the Commons where this matter will undoubtedly come up again. I hope most sincerely that the conclusion is reached that a chief constable should be accountable to someone for what he is signing and that he should have prior authorisation, as every other service has to have, before doing so.
4.15 p.m.
Lord Gisborough: My Lords, the police are fighting an increasingly difficult and often dangerous battle against increasingly sophisticated criminals, including the whole gamut of hackers in information technology, and they need all the available techniques to help them establish evidence and effectively carry out investigations. This Bill contains the vital provision of intrusive surveillance which will help the police fight crime.
Intrusive surveillance is a covert intelligence gathering technique which the police and security services have been using for years. They have been able to use these facilities through common law where courts have upheld the admissibility of evidence derived from such activities. The Home Office has strict guidelines about how the practice should be conducted.
The Security Service Act 1989 formally established a procedure and clearly placed into statute how intrusive surveillance could be carried out by the Security Service. The Police Bill is intended to bring in a statutory authority for the police.
Intrusive surveillance involves searches and specialised surveillance methods concerning property such as cars and premises. As part of an inquiry the police may need to track a suspected stolen vehicle or
monitor thieves returning to a garage full of stolen property. The law regarding admissibility of evidence often means that the police have to have proof of the criminals actually committing an offence. Clearly, where serious organised illegal activities are concerned, sophisticated and up-to-date procedures are needed by the police to catch the cunning criminal.The Bill seeks to enact a formal system of authorisation for police use of intrusive surveillance. It provides for an independent commissioner to oversee the activity, ensuring that the police are accountable for their actions. Currently the police carry out such surveillance methods with the authorisation of a chief police officer in accordance with the Home Office guidelines. However, that may put the police at risk of civil trespass and possibly, in some cases, criminal damage or theft. The Bill will remove those risks. The commissioner will review all applications for the use of surveillance and deal with any complaints from the public. The code of practice, together with standard application forms, will ensure that surveillance is carried out to high professional standards, with a full explanation of why the authorisation is necessary and why other techniques are inappropriate. The checks and balances needed to ensure consistency and fairness will therefore be in place. The material gathered from intrusive surveillance will be used for intelligence purposes and can be submitted as evidence in court.
During the passage of the Police Bill two specific issues have arisen. I should like to comment on them. They are the issues of who should authorise the warrant permitting the surveillance, and where or who may be subjected to it. First, I should like to deal with the issue of the warrant. There are three potential authorising bodies; namely, the judiciary, the executive and the police themselves. The judiciary have expressed the view that they should be the authorising body. However, intrusive surveillance concerns the gathering of intelligence and evidence. To involve the courts at this early stage of an inquiry could be perceived by the public as compromising their impartiality. In addition, the judiciary are experts in the law and not necessarily in the operational practicalities of policing. The judgment of whether or not to allow intrusive surveillance involves the operational experience of a chief police officer to which the judiciary do not have access.
The option of ministerial warranting would introduce an independent element into the decision-making process and would be similar to the current practice of the Security Service. However, Ministers becoming involved in the operational decisions of the police could be perceived as interfering in their independence. The Security Service is directly accountable to the Home Secretary but the police are not. It is also of concern that quick decisions in urgent cases may not be possible because of the administration required in applying to the ministry.
Let us consider the option of placing the authority with the chief officer of police. He or she is the person with the operational experience to decide whether or not the intrusive surveillance is appropriate. A chief officer is readily available, and in urgent cases it is proposed to
allow an officer of ACPO rank to make the authorisation. This ensures that the judgment to permit the surveillance to go ahead is made at the highest level. In my opinion, the appropriate authority to undertake intrusive surveillance should come from the chief officer of police, as the Bill proposes.Secondly, I should like to deal with where and on whom such surveillance should take place. Highly organised criminals will take advantage of any legal way of avoiding being caught. Their knowledge of our legal system is often very good and any loopholes or exemptions are taken advantage of. It is clear, therefore, that any exemptions made, whatever the circumstances, will offer the criminal the means of continuing to conduct illegal activities and to make profit, particularly from those in society who can least afford it. Therefore, the use of the surveillance should be applicable to all premises.
It may be that the press has reflected the concerns of members of the legal profession who believe that the use of surveillance within their chambers and offices will undermine the right of people to consult their lawyers in confidence. However, the police are accountable for their actions to the judiciary and will have strict Home Office guidelines to follow. Furthermore, I believe that criminals would exploit those premises if they were exempted.
In conclusion, I believe that the Police Bill should be given our full support if the police are effectively to combat serious organised crime which poses a real threat to the fabric of our society.
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