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Lord Mishcon: My Lords, I appreciate that point. However, I say most courteously that had the noble Lord merely uttered the last part of his remarks instead of the first part, I should have had no complaint. The first part was directed to the horrors that now exist and surround us in this country which make these powers necessary. Unfortunately I have to agree with him, like everyone else who has spoken, that the House must determine whether or not the police should have powers which presumably they have exercised without the knowledge of two very fine Home Secretaries whom this House is privileged to have in its midst. Both noble Lords said that to their horror these powers were exercised without the necessary statutory authority.
The wording of Clause 91 is slightly relevant to that point; namely, that,
- "No entry on or interference with property or with wireless telegraphy shall be unlawful if it is authorised under this section".
The answer given by the noble Lord, Lord Marsh, and others--a point that has to be faced--is: do judges have sufficient experience of operational matters to be consulted and give their sanction before orders are made? I cannot see that argument coming from the Government Front Bench, if only because they are the people who say that commissioners should not be ex-policemen but High Court judges. They are the people given responsibility by the Government for review. What are these poor, inept people who know nothing about operational matters doing reviewing the decisions of those who do know? I therefore have some difficulty accepting that argument.
We have a difficult task, one which, as the noble Lord, Lord Callaghan, said, most Members of this House find embarrassing. The embarrassment is this. I believe that every one of us would say that we have to impose some control on this power. I am so sorry to concentrate on the noble Lord, Lord Marsh, which is not really fair; however, he spoke in terms of accountability. He said with great emphasis that it is accountability that is important. The Minister nods her very comely head. I am afraid I do not understand the reason. Where is the accountability? It will all be done in secret. Nobody will know about it unless there is an application for review. One does not know how people will ask for a review if the whole matter is so secret; however, that is another point. How in the name of heaven is accountability to
come about unless it is in front of a commissioner or a judge of some status? Where will the question be asked? In this House? Are we to know? Even Home Secretaries have not known in the past. Ordinary Members of this House will not know. Where is the accountability?Most of us, honestly and frankly I believe all of us, consider that there must be some proper limitation. The tragedy--and I say that advisedly from the point of view of every noble Lord who treasures the liberties that we enjoy in this country and who does not want them impaired--is that we are faced with two amendments. That is a tragedy. The way out, which, I hope, will give the Government cause for second or third thoughts, is to vote for both amendments. That is the way to show to the world at large, which otherwise will not understand, and to another place, where this House stands when liberty is at stake.
Lord Rawlinson of Ewell: My Lords, I shall detain the House for a very short time. I have never been in the ranks of hostility to the present Home Secretary. In some of what have been described and portrayed as disputes between my friends the judges and the Home Secretary I have at times been surprised by decisions that have been made by my friends the judges. I have never been hostile to the Home Secretary: some of the hostility has become personal and sometimes rather disreputable. On this occasion, however, I am sure that the Home Secretary is wrong.
I will not engage in the histrionics that we have heard from noble Lords on the Liberal Democrat and Cross Benches. I ignore all histrionics, but I believe that we must get this matter right. The priority must be liberty. It must be that prior authority should be given; and it can be given only by the independent branch of our constitution, the judiciary.
5.15 p.m.
Lord Lloyd of Berwick: My Lords, I too welcome Part III of the Bill. They are powers which undoubtedly the police need for all the reasons which have been given. However, with police bugging running at 1,300 operations a year--a figure which surprised me as much as it surprised the noble Lord, Lord Callaghan--it is high time that something was done. There can be no doubt that each one of those operations involved an unlawful trespass on private property. They were no less unlawful because they were carried out, I have no doubt, in accordance with Home Office guidelines. Home Office guidelines are admirable and very welcome, but they cannot change the law.
Police bugging should have been put on a statutory basis as long ago as 1985 when telephone tapping was for the first time put on a statutory basis as a result of the decision of the European Court in the Malone case. The analogy between telephone tapping and placing a bug in the telephone itself, or in the room, or wherever, is obviously close. It is an analogy which I hope to develop briefly.
I do not wish to appear to be in any way grudging in my support of Part III by suggesting and hinting that it is long overdue. Particularly welcome is the provision
that the product of a police bugging operation will be admissible in court to convict the criminal. I can see no conceivable point in using these processes to detect crime if we do not also use them to convict the criminals once they have been detected. Therefore, I am all the more depressed that the Government have not taken this opportunity to amend Section 9 of the Interception of Communications Act which forbids the product of the telephone interception to be used in court. What possible difference can there be between a conversation which is intercepted on a telephone and a conversation which is intercepted in a man's own home? Why should one be admissible in court and not the other?I do not expect the Minister to deal with that point today. I hope only that it will not be overlooked because it is important. I mention it now only in order to emphasise the close connection between the two methods of intercepting conversations. Therefore, so far I entirely support and welcome Part III of the Bill, but I am afraid that that is as far as I can go. I cannot accept that it is right for one police officer to authorise another police officer to enter our homes, no matter how senior the first police officer may be. I still have a sense of wonderment that any of your Lordships can accept that principle because it seems to cut across so seriously one of the basic concepts of freedom.
One can test the matter in this way. Let us suppose that in 1985, when the Interception of Communications Act was passed, the Government had proposed that one police officer should be able to authorise another police officer to intercept our telephone calls or to open our correspondence. Such a proposal would have got nowhere. In 1985, Parliament required--and rightly required--that each new telephone interception required the authorisation--and the personal authorisation--of the Home Secretary of the time. I can say from my experience that that is a responsibility which every Home Secretary since 1985 has taken very seriously.
What has changed? The definition of "serious crime" in the Bill is exactly the same as the definition of "serious crime" in the Interception of Communications Act. The need to do something about organised crime by every legitimate means is no greater now than it was then. So why is it that telephone tapping requires the independent personal authorisation of the Home Secretary but bugging does not? Can it really be said that the intrusion into our homes and the opening of correspondence--once the police officer is lawfully in our homes he will be able to exercise all his powers of search under Section 19 of the Police and Criminal Evidence Act--is in some way less serious than the interception of our telephone conversations? Clearly, it cannot. I ask again, what is the difference?
I do not suggest that the Secretary of State should himself authorise police intrusions. I do not see how he can. As we have been told, they are running at a rate of 1,300 a year. What will probably surprise the noble Lord, Lord Callaghan, is that the number of warrants now issued by the Home Secretary under the Interception of Communications Act is just below 1,000. To be precise, there were 997 in 1995. Therefore, the Home Secretary has got enough on his plate in ensuring that the Interception of Communications Act is properly
complied with and that warrants are properly issued, without troubling himself also with police intrusions. No, I would not suggest that, because the solution is such a simple one; it is the solution which is proposed by the noble Lord, Lord Rodgers, in his amendment.It seems that the Government have some kind of difficulty about prior judicial authorisation. I have read the debates and the correspondence subsequently circulated but I am quite unable to see what the difficulty is. Obviously there needs to be secrecy, but there is no problem there. My own solution would be that authorisations in London would best be granted by the chief stipendiary metropolitan magistrate, in Scotland by the sheriff of Lothian and Borders and elsewhere in the United Kingdom by a designated circuit judge. That is what happens in every other country which I visited during the inquiry I carried out into terrorism and in every other country of which I have knowledge. I cannot see why it should not be be possible here.
I accept that there will be cases in which there is great urgency; but equally there are cases where there is great urgency in telephone tapping. I can remember many examples where an application has been made by the police, saying, "We must have the answer by tomorrow", and there has been no difficulty. The police make their application; the Home Secretary is a busy man but he finds time to deal with the application personally. If the Home Secretary can do that in the case of telephone tapping, surely the designated commercial judge can find time to do it in the case of police bugging.
What are the other objections? It is said that somehow it would involve the judiciary in operational matters. How could a judge, for example, be satisfied that the police had exhausted all other methods of obtaining the information which they wanted? Exactly the same situation applies under the Interception of Communications Act, yet the Secretary of State is able to satisfy himself that the police have exhausted all other methods of acquiring the information. Surely a circuit judge would be able to do the same without difficulty?
Then it is said that circuit judges should not be involved in the early stages of an investigation because it might prejudice their impartiality at a subsequent trial. To my mind that is the feeblest of all the objections. It has always been the function of judges to stand between the individual and the Executive. It was, after all, the judges who invented the Judges' Rules, which are now replicated in the Police and Criminal Evidence Act. Surely it should not be beyond the wit of man to arrange that the judge who grants the authorisation should not be the judge who presides at the subsequent trial.
In any event, circuit judges are already involved in the early stages of investigation proceedings. Under Section 9 of the Police and Criminal Evidence Act it is the circuit judge who grants access to the so-called special procedure material; and it is that material and that power exercised by a circuit judge which has proved so very useful in the prosecution of drug cases.
That procedure involves the circuit judge in operational matters and nobody has suggested that that system does not work well.I should like to take time to mention one point which I know will be like a red rag to a bull to many of your Lordships--namely, the European Convention on Human Rights. It seems to me inevitable that police bugging will be challenged in the European Court, just as telephone tapping was in the Malone case. Indeed, I am surprised that it has not been challenged in some cases already, but I think the reason for that is probably that it was only recently that the Appellate Committee decided that the product of a police bugging operation was admissible in evidence. Whatever the reason, it seems inevitable that this legislation will be challenged and almost inevitable that, if it is challenged, it will fail the test under Article VIII of the convention. There will be no chance of our derogating from the convention as we were able to do in the case of police procedures in Northern Ireland. The result will therefore be that sooner or later--sooner rather than later, I suspect--this Bill, if passed in its present form, will come back for amendment. What sense does it make to pass a Bill now which we can say will be doomed under the European convention?
I now come to the amendments. I say nothing about the government amendment since it achieves nothing. As for the amendment put down by the noble Lord, Lord McIntosh of Haringey, it has the great merit of requiring prior authorisation. However, my criticism of it is that it is too complicated and in some ways almost too clumsy. It adds yet another bureaucratic layer, while the alternative is so simple. I do not know what these commissioners will cost, whether they be one or three--they will not come cheap--but I do know that a circuit judge will grant an authorisation for nothing. Surely it makes sense that the circuit judge should grant the authorisation and that the commissioner should be held in reserve, as was the position with Lord Justice Stuart-Smith in the case of the Security Service Act or my noble and learned friend Lord Nolan in the case of the Interception of Communications Act, to see that the legislation is being operated properly. Indeed, the commissioner might even hear an appeal if the circuit judge has refused an application from a chief commissioner.
I hope to have the opportunity to vote on the amendment of the noble Lord, Lord Rodgers, which seems to me to be the simplest, cheapest and most obvious answer to the problem. I still nurse the hope that all the Opposition parties, as well as some Cross-Benchers and even some Members on the Government Benches, might unite behind that amendment. It would not mean that we were being soft on crime; this has nothing whatever to do with being soft on crime. I fear that, if we pass the Bill in anything like its present form, it will mean that we are being soft on freedom.
5.30 p.m.
Lord Jenkins of Hillhead: My Lords, I believe that the noble and learned Lord, Lord Lloyd of Berwick, has more intimate and authoritative knowledge of these
matters than any of the three Home Secretaries who have intervened in this debate, including myself. I was very struck by the point which he took--and which the noble Lord, Lord Carr of Hadley, also took--about the apparently remarkable contrast between dealing with telephone tapping and dealing with this matter of intrusive bugging.I was a little surprised--as was the noble Lord, Lord Callaghan, about another figure--at the number of telephone tapping cases, now at just under 1,000. In my day there were just over 200, but the most determined efforts were made to obtain the signature of the Home Secretary when a case of urgency arose. I remember a poor assistant private secretary of mine being sent down to a remote village at the northern end of Dartmoor late on a Saturday evening in January in order that I might sign the warrant and he might return to London before the Sunday morning. It seems rather extraordinary that in relation to telephone tapping--which is certainly no more intrusive, perhaps less so, than putting a bug in someone's house--this procedure should be gone through. Goodness knows what has been the exact position so far, but in the future it will be done on the ipse dixit of a police officer, and according to the provisions of the Government.
I am glad to take part in this debate, in particular following the speech of my noble friend Lord Callaghan. There was a time when the ministerial careers of the noble Lord, Lord Callaghan, and I were closely intertwined. I believe that I am now the senior living Home Secretary; he is the senior living Chancellor of the Exchequer. Between us we also occupied the number two slots in relation to both those offices. I mention that not for autobiographical reasons but because increasingly, on reflection, I am convinced that while the Chancellor is, while he holds the office, more at the fulcrum of politics, the Home Secretary's work, and particularly the Home Secretary's legislation, lasts longer. The work of a Chancellor is mostly swept away like a sandcastle by the high tide of his successor, whereas the work of the Home Secretary goes on.
On the whole my record is regarded as a liberalising record. I am by no means ashamed of that. But the fact that one cares for the liberty of individual conduct does not--to take up the phrase of the noble and learned Lord, Lord Lloyd--mean for a moment that one is soft on crime. Indeed, I would hazard the guess--the boast, if you like--that majority verdicts in criminal trials (introduced against considerable Conservative opposition, with the noble exception of the noble and learned Lord, Lord Hailsham, who was a sound ally on that) have done more to convict serious criminals than all the innumerable crime and police Bills which Michael Howard has brought forward. That measure was carefully thought out but it quickly became non-controversial, I venture to suggest, because it carried the support of informed opinion. However, I believe that what is here proposed most signally does not.
The peculiar duty of the Home Secretary is to hold a balance between the upholding of the authority of the law and the rights of the individual, and to do that without regard to headlines in tabloid newspapers or
applause in conference halls at Brighton or Blackpool. Because of a certain fear that perhaps the Home Secretary does not always maintain that admirable balance, it behoves us to be particularly vigilant in this House about the proposal that is before us today. However, our vigilance must be co-ordinated if it is to be effective. We have an amendment standing in the name of my noble friend Lord Rodgers of Quarry Bank which has long been tabled. We believe it to be better and neater, and that it does not confuse the role of the commissioner or commissioners, as a source of prior permission, with his or their subsequent review authority. But what is perhaps still more to the point is that it is clear from the debate so far that the amendment of the noble Lord, Lord Rodgers, is preferred by the noble Lord, Lord Carr, and by the noble and learned Lords, Lord Browne-Wilkinson and Lord Lloyd.
How can we deal with this difficult matter? The overwhelmingly important thing is that your Lordships' House today--if it is so disposed, which I believe that it may be--should give clear notice to the Government that what is proposed by them is not acceptable. How do we deal with this matter? I urge flexible ecumenism between us and the Labour Party. I believe our amendment is better but I am not so convinced of its overwhelming virtue that I cannot vote for the Labour amendment. I shall vote for the Labour amendment and so, I believe, will every one of my noble friends on these Benches who are present today. What I greatly urge my noble friends on the Labour Benches to do is the following. If their amendment is carried, that is well and good. We may have to discuss a little tidying up at a later stage, but that is a clear expression of opinion. Our amendment then falls. But, if a Labour amendment is not carried, I not merely urge, I beg of noble Lords on the Labour Benches, then to vote for our amendment and not to let the--
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