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Lord Mishcon: My Lords, I am most grateful to the noble Baroness for what she says about accountability, but accountability, as I have always understood it in this House, has meant accountability with detail to Parliament. Is the noble Baroness suggesting that the report that would be given by the commissioner would contain details of every case?

Baroness Blatch: My Lords, of course, I am not suggesting that. Is the noble Lord really suggesting that the operations of the police in pursuit of serious crime, perhaps acts of terrorism, should come to this House via the Prime Minister with details of how they were operating? What is important is that they are accountable for the authorisations they give; they are accountable in court when criminal cases are taken there as to how they exercise that authority. But of course it would not be for Parliament to understand all the ins and outs of how the police pursued their criminal investigations.

Lord Mishcon: My Lords, with the leave of the House, what I was suggesting before and suggest again now, is that accountability would be there if it was to an independent judicial body, or in fact, an independent judge. As the procedure will now exist there will be no accountability at all.

Baroness Blatch: My Lords, obviously I have not made myself very clear. The accountability in every single authorisation is to an independent person who has the authority and who in fact has been or is already sitting as a senior High Court judge. It is that person--the commissioner--who will make the annual report to the Prime Minister, who will then report to Parliament. I believe that that is independent judicial oversight of the decisions that are made. The difference between us is about prior authorisation or post-monitoring and review of the way in which the decision was taken. However, I believe it is a robust and rigorous system of accountability concerning the actions of a chief officer.

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A number of references were made to the proposal made by the noble Lord, Lord McIntosh. He, for example, did not explain how his scheme would work in practice. He has said there should be more than one commissioner to cover the whole of the United Kingdom. We are talking about three, or not fewer than three. I should like to pose the question: how would one get in touch, unless there were many more of them, very, very quickly? Would one have to use fax machines or telephones in order to do this work? If so, then of course there is the very real danger of information leaking. And if not by fax, what would be the other system which would not be cumbersome, unreliable or slow? Subsection (2) proposed by the noble Lord, Lord McIntosh, in Amendment No. 24 recognises that the procedure will not cover urgent situations. When the noble Lord, Lord Rodgers, was speaking I understood that the Liberal Democrats believe that urgent action is always necessary in these events. Therefore I pose the question: is the scheme flawed in that respect? The dual role for the commissioner as set out in the amendments would certainly lead to a conflict of roles.

The noble Lord, Lord Callaghan, asked for figures for previous years. I am afraid that we have only two figures, which I have given to the House. One relates to the time when there was a review in progress during the noble Lord's term as Prime Minister, and is the figure of between 500 and 600. The other we know came from the Association of Police Chief Officers itself as a precursor for this debate: it is the 1995 figure. I am not able to give him specific figures for the intervening period.

The noble and learned Lord, Lord Browne-Wilkinson, asked whether the police were acting unlawfully now. We do not accept that they have been acting unlawfully, although, of course, everything will depend on the circumstances of each case. The exercise of intrusive surveillance powers by the police has not, so far as we are aware, been ruled unlawful by the courts and indeed much of the judicial scrutiny that has taken place has implicitly endorsed the exercise of these powers. Even with judicial warranty, much of the--

Lord Browne-Wilkinson: My Lords, I am grateful to the noble Baroness, I do not want to take up more time of the House because your Lordships want to vote. However, I would be grateful if by the usual channels at least I could be given a sight of an opinion taken by or given by the law officers, which explains how conceivably the action is lawful, because no lawyer that I know could take that view.

Baroness Blatch: My Lords, first, I have made the point about cases that have come to court where the courts have not pronounced on the illegality or otherwise of a case. There are also circumstances when this kind of activity is carried out when it is carried out by the police officer under common law. The point I made about its being a case-by-case judgment is very important. The noble Lord, Lord Hutchinson, referred to a number of concerns, but even with judicial warranting there would be no requirement for the defendant or an

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accused to be aware of what had gone on. It would not be possible to convict people on evidence recovered by intrusive surveillance but not used in court. It would have to be presented in court; and a jury cannot convict on evidence it does not hear. If the evidence has not been produced it is not available to the court to be used.

Some passing comments were made about my noble and learned friend who has been solidly with me on this Bench throughout this Bill, the Lord Advocate. He has practised in law for 25 years and I can only say that his record is an extremely impressive one.

I was asked whether the revised guidance was issued in 1984 and put into the Library. The answer is, yes, it was issued in 1984 and it was the subject of a Question in this House in December 1984, when your Lordships were told that a copy of the guidelines had been placed in the Library of the House. There was a reference to a note explaining why telephone tapping is different. Under IOCA, the Secretary of State directs a third party to implement intercepts: that concerns the non-law enforcement agencies. In this provision, the police themselves carry out the intrusive surveillance and it is therefore only appropriate for the third party to be directed by the Home Secretary to do something which would otherwise be unlawful.

The noble Lord, Lord Walton of Detchant, referred to the problems and concerns of the medical profession. We simply cannot have exemptions of categories, because this would create loopholes. We have agreed with the Association of Chief Police Officers, who understand the point that is being made by the noble Lord on behalf of the BMA, a further amendment to the code of practice which I hope the noble Lord will find helpful. If I may give him the form of words which it is envisaged shall be used, they are:

"When carrying out the intrusive surveillance of premises to which members of the public have access for matters of a confidential nature, for example, a hospital, a doctor's surgery or a lawyer's office, subject to any disclosure considerations, any material obtained which is unrelated to an investigation involving serious or organised crime should be destroyed immediately".

I have one or two final points. My noble friend Lord Alexander has referred to other countries, but some of those other countries where these provisions exist are where the examining magistrate is part of the investigative process. In this country the investigation of crime is entirely within the responsibility of the police and Customs. Our system of law enforcement is built upon the notion of over 50 operationally independent chief officers. I believe that these officers have demonstrated that they are the best equipped to make these decisions.

No one can be certain that their house has never been bugged, as my noble friend Lord Alexander pointed out. The defendant may never know that his premises or his car has been bugged, a point made by the noble Lord, Lord Hutchinson. The innocent conversations of third parties, unconnected with the police inquiry, may well be overheard and recorded, but I have given the noble Lord my promise that something will be included in the code of practice to address that point.

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The noble Lord, Lord Knights, asked me for a breakdown. I am afraid that I cannot give that, except to say that in the majority of cases the bugging or tracking of vehicles is involved, as is entry to non-residential property, such as outbuildings or garages. My "understanding"--if I am allowed to use that word in this context; perhaps I should say "I believe"--is that intrusion into private houses is, in fact, rare.

Perhaps I may repeat a point that I made earlier and advise the noble Lord, Lord Knights, that it is the police themselves who want to have their activities put on a statutory basis. At present, circuit judges, sheriffs and JPs are not called as witnesses to justify their decision to grant a search warrant. However, at present chief constables are called to justify their decision to authorise intrusive surveillance. Therefore, if the ultimate decisions are left to judges, accountability would be reduced and would not be as great as under the proposals in the Bill--that is, unless they are to be put in the same position as chief constables.

Together with our amendments, the proposals in the Bill provide for greater accountability with chief officers having to justify their decisions not only to the commissioner but, in many cases, ultimately to the courts. They provide a clear distinction between the authorisation and the review process, enabling the decisions of chief officers to be carefully scrutinised and monitored, and the maintenance of the separate functions of the judiciary and the investigative agencies without pulling judges into the investigation process. They are effective arrangements which do not lead to any delay in awaiting authorisation and which ensure that the confidentiality of operations is maintained. Again, that point was made by the noble Lord, Lord Knights.

Chief officers are very responsible people who are fully and publicly accountable. It is unthinkable that they would behave in a cavalier fashion or on a whim. Under the proposals set out in the Bill, it would be near impossible for them to do so without serious consequences. Indeed, it would not be in their best interests or in the interests of the high reputation in which our police serve for their decisions to be constantly challenged and overturned. Therefore, this rigorous system of oversight, review and monitoring, together with the power for the commission to quash decisions, will act as an effective pressure on chief officers to act responsibly. I hope that the amendments will be rejected.

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