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Lord Callaghan of Cardiff: My Lords, I am obliged to the noble Baroness for giving way.
The Permanent Secretary at the Home Office when I was Home Secretary was the noble Lord, Lord Allen of Abbeydale. He was present although he had told me that he would not be able to be here. I have checked carefully with him. The noble Lord tells me that I had no information about this matter. I do not know why that was so. It may be for the reason given by the noble Lord, Lord Knights, that these methods of intrusion were not then available. It is quite true that it was 30 years ago and those methods were perhaps not used. That is a possible explanation. But what is quite clear is that there was absolutely nothing going on in the Home Office at that time which begins to compare with what is taking place now, as the noble Lord, Lord Knights, said.
Lord Carr of Hadley: My Lords, I wish to confirm that my experiences were exactly the same as those of the noble Lord, Lord Callaghan. I, too, have checked with the Permanent Secretary during the first part of my term as Home Secretary. He was succeeded in the middle of my term by a successor who has since died. Certainly for the first half or thereabouts of my term as Home Secretary exactly the same applies as regards information that I was or was not given as to the noble Lord, Lord Callaghan.
Baroness Blatch: My Lords, for the record I should read the first paragraph of a letter which went out from the Home Office in 1977 when the noble Lord, Lord Callaghan, was Prime Minister. The first paragraph reads as follows:
- "The use of certain equipment in police surveillance operations may involve encroachment on privacy. The principles and procedures relating to such use have been reviewed in consultation with the Association of Chief Police Officers and the Commissioner of Police of the Metropolis, and the following arrangements have been agreed for a trial period of 12 months from the date of this letter."
Interestingly, it was probably because Ministers in the Home Office when the noble Lord was Prime Minister and the noble Lord, Lord Merlyn-Rees, was the Home Secretary, genuinely had concern that these activities, first, were important and essential in the pursuit of serious crime, but, secondly, that they should be carried out under some guidance. Whatever that concern was I do not know because it would be some time before we were able to look back at the record, but clearly there was concern. There was a review under the Government of the noble Lord, Lord Callaghan, guidelines were produced. They were reproduced and strengthened in the early 1980s.
As I said, the police have always felt uncomfortable that there was no statutory basis for these activities. The matter was brought up again in this House during discussion on the Security Service Bill. We gave a promise at that time that once the consultations were at an end, we would come back to the House without delay with a proposition to put these activities on a statutory basis.
Lord Callaghan of Cardiff: My Lords, the noble Baroness has not dealt with the period when I was Home Secretary to which I specifically referred. Although I have no personal knowledge and I do not know whether these papers were submitted to me when I was Prime Minister and I do not know whether my initials are on them. They are not; I had thought that probably they are not. I agree that with the change of public opinion and public culture on these matters there has been a growing feeling that these matters should be regularised. The noble Baroness will remember that I said that during the lifetime of this Government they have moved progressively in that direction and that they are entitled to be supported. I offered them credit for that this afternoon. It may well be that my noble friend Lord Merlyn-Rees was also beginning to move in the direction of introducing guidelines prior to statutory action, but now that the matter is in the full light of day, we all know where we are. I know where I stand on that.
Baroness Blatch: My Lords, the noble Lord will know that I would not see any paper that had his signature on it. It is a good thing that this piece of paper does not have the noble Lord's signature.
It was the noble Lord, Lord Merlyn-Rees, who was concerned that there should be guidelines and these guidelines were produced, subsequently placed in the Library, subsequently strengthened and now we are here putting the issue on a statutory basis.
The reason that I made a point of that is this. Some very powerful people have spoken today--the noble Lord, Lord Callaghan, the noble Lord, Lord Jenkins of Hillhead, my noble friend Lord Carr--who all gave an impression to the House that they had no idea that this was going on. If they had no idea in a year when 500 to 600 activities took place--
Lord Callaghan of Cardiff: No, no, no.
Lord Callaghan of Cardiff: My Lords, with respect to the noble Baroness, although I would not care to put
a figure on it, I doubt when I was Home Secretary that the figure reached 150. And that was not the police. That was for MI5 and the intelligence services. Not one for the police ever passed under my hand.
Baroness Blatch: My Lords, I think that it is not possible for the noble Lord to say that none of these activities were taking place at that time.
Lord Callaghan of Cardiff: My Lords, I do not think it is possible for the noble Baroness to say that there were.
Baroness Blatch: My Lords, perhaps I may complete the point. I have made the point that it was when the noble Lord was Prime Minister. When the noble Lord was Prime Minister and his party were in office, his then Secretary of State was concerned about this activity and initiated the first set of guidelines because there was that concern. In the year following the guidelines there were between 500 and 600 activities. I cannot believe that it went from no activities at all to 500 or 600 activities in that one year. The truth is that it has been going on with, I believe, a high degree of responsibility on the part of the police. To think that the number has gone from 500 to 600 in 1978-79 to 1,200 or 1,300 this year for the whole of England and Wales is not an unprecedented increase.
Lord Callaghan of Cardiff: My Lords, with respect, there can be no conclusion about this matter. However, it is my general view that this began to increase in the 1970s when there was such industrial trouble. That is my belief about it and I am as much entitled to my belief about it as the noble Baroness is to hers. That is when it started--when there were a large number of strikes in this country. I take full responsibility for 1977, whether I saw the papers or not, but I do say that it has now reached alarming proportions and that it should be brought under prior authorisation in a statute.
6.30 p.m.
Baroness Blatch: My Lords, that is precisely what we are about and that is precisely the proposal in the Bill.
We believe that those who take operational decisions must be accountable for their actions. The proposals set out in the Bill, together with additional amendments to the Marshalled List today, will provide a robust system which allows for high level independent oversight of every single operational decision. This role will be discharged by a commissioner who is or who has recently been a High Court judge. The commissioner will be informed of every authorisation as it is granted. In addition to having continuous oversight to review and monitor the operational decisions taken by chief officers, he will have powers to quash an authorisation, if necessary, immediately.
I should like to make one other point about the accountability of chief officers. It is that they can be required to give evidence in court to justify the authorisation they have granted. When that occurs, they
will be required to explain how they have satisfied the strict criteria which are set out in Clause 91(3) and that they have followed the procedure set out in the code of practice.We believe also that there must be a clear distinction--this is my key point--between the roles of the commissioners and the chief officers. It is not the job of the commissioner to second-guess the decisions of chief officers, a point that was well made by the noble Lord, Lord Marsh. It will be their role to ensure that decisions have been properly taken in accordance with the Act and to investigate complaints. How can a commissioner or a judge investigate complaints or actions to which he has been party?
Under the amendments put forward by the noble Lord, Lord McIntosh, the role of the commissioners would become blurred and, in our opinion, less effective. If these operations were authorised by the commissioner, then who would review the decision to ensure that it had been properly taken? Under these amendments, it would be the commissioners themselves. They would become judge and jury. And although, under the noble Lord's amendments, the decisions of the commissioners would be subject to appeal, that would happen only in cases where there was a criminal prosecution and the use of these techniques became known. What would happen in these cases or in cases where there was judicial authorisation, as suggested by the noble Lord, Lord Rodgers, where the commissioners' or judges' decisions were later questioned in court? It would undermine judicial independence for the commissioner to have any function of quashing an authorisation given by a judge and he obviously could not order a judge to pay compensation. With prior authorisation, would this make the commissioner liable to pay compensation? After all, he will have approved the authorisation.
It would also be difficult to see how any complaints system would work. It is unlikely that there would be any public satisfaction with a system where the commissioners would be both authorising an operation and investigating a complaint about their own decision.
The amendments make provision for the prior authorisation of the commissioner in cases involving interference with premises. This could create uncertainty for chief officers about the circumstances in which they had to seek prior approval or, if a window of opportunity arose while approval was still being sought, whether they could lawfully proceed. What, for example, would constitute "premises" and where would a situation be so urgent that it would not be reasonably practicable to seek prior authorisation? Confusion in such circumstances could lead to disastrous operational consequences. Indeed, it is possible, on the very same case, that a chief officer could authorise the bugging of a vehicle and the commissioner would have to authorise the bugging of a garage, an outbuilding or some other premise.
It is the blurring of responsibilities and effective second-guessing of chief officers that we believe could significantly damage the operational effectiveness of these techniques. We very strongly believe that
responsibilities must be clear. Chief officers must be free to take operational decisions in accordance with the strict criteria which the Bill and the code of practice will provide. The proper role of the commissioner is to review such decisions to establish whether they have been properly taken. And in taking such decisions, the commissioner should apply the principles of judicial review; that is, that the decision was reasonable, that there was no procedural impropriety in the way the decision was taken and that there was a legal basis for the decision. These must be the most important elements in any oversight process. That is why we have tabled amendments which will significantly strengthen the role of the commissioner but maintain these important distinctions.We, and the Association of Chief Police Officers, very strongly believe that these amendments could significantly inhibit the ability of the police to fight serious crime effectively, and reducing the ability and effectiveness of the police to fight serious crime is unacceptable to the Government.
The other amendments replace the existing provision for the appointment of an independent surveillance commissioner and provide for the appointment of not fewer than three commissioners. We have tabled our own amendments on this matter, which we consider more effectively achieve this, which will be discussed later. I welcome the comments made by the noble Lord, Lord McIntosh, about that, but we shall come to those amendments at some point later this evening.
I share the view that more than one commissioner will be necessary. But I believe, with one exception, that the amendments tabled by the Government achieve this objective in a more satisfactory manner. The exception is that I would support Amendment No. 105 providing that the commissioner who finds in favour of a complainant should make the determination specifying what, if any, should be the amount of compensation to be paid.
Perhaps I may touch on some of the points made during the course of debate. In answer to my question about Amendment No. 80, I remain uncertain, from what the noble Lord said, as to whether the surveillance commissioner would or could be called to give account in court for his involvement; that is, giving approval for a surveillance activity in pursuit of serious crime. If he could, then he is being dragged into the investigative process; if not, then who does account for approving the authority of a surveillance activity? I am advised that he could be called to justify his decision before a circuit court judge and this could result in a circuit court judge making the decision that the commissioner was wrong. Where does that leave the commissioner, having been found wanting making a decision when he has the responsibility for oversight of the proper workings of this activity? Although Amendment No. 80 refers to the authorising officer giving the authorisation, the noble Lord said the distinction is that he does not actually give the authorisation. But since this is subject to the approval of the commissioner, then it is the commissioner who has the final say.
Much has been said about the freedom of the individual and it is an important and fundamental point to make in the context of this debate. However, as the noble Lord, Lord Marsh, said, the freedom of the individual must be weighed against the protection of people whose freedom to go about their everyday activities is denied by the activities of serious and organised criminals.
The noble Lord, Lord Mishcon, asked where accountability lies. Chief constables will be bound by the provisions in Clause 91(3). They will be bound by the code of practice in coming to a decision. They will have to satisfy themselves as to all the criteria set out. The commissioner will be informed of every single authorisation a chief constable makes. He will have the power to quash at any time from the point at which he receives notification of an authorisation. He has a role in the review and monitoring of all decisions. He makes an annual report to the Prime Minister--a requirement also set out in Clause 97--and the Prime Minister puts the report before Parliament. The chief constable is of course also accountable to the courts--
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