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Lord McIntosh of Haringey: My Lords, those last remarks of the Minister are the only ray of hope in an extremely worrying answer. The noble Baroness started by saying that the Government recognise the principle of legal privilege, but then qualified that by saying, "On matters such as the nature of the defence". I have not heard that legal professional privilege is qualified in that way. The definition of "legal professional privilege" and of "excluded material" does not come from this amendment, but from the Police and Criminal Evidence Act 1984. The definition of "subject to legal privilege" comes in Section 10 and the definition of "excluded material" is found in Section 11. We have not sought in any way to extend or to depart from those definitions. They are already part of our law. There is no reason for the Government to suggest that this is a new departure.

I am afraid that matters only got worse as the Minister's arguments proceeded. The noble Baroness sought to complain that Amendment No. 27 covered not only lawyers' premises but also--she was quite right--

"another place in or at which communication subject to legal privilege is taking place".

One can well imagine the way in which a zealous police officer might want to focus a directional mike on the steps of the Old Bailey, for example. That is technically possible and it is perfectly legal according to the provisions of the Bill. Since my Amendment No. 24 restricts the provisions to "premises", it is probably legal even after the passing of that amendment. Surely bugging surveillance should not set out to record communications which are subject to legal privilege or which are excluded communications under Section 11 of the 1984 Act.

Baroness Blatch: My Lords, I speak with the leave of the House and I am grateful to the noble Lord for giving way. Perhaps I may ask the noble Lord a question. If it was felt necessary for the purpose of pursuing the crime that the suspected villain's home was bugged, if the case was properly made out and all the provisions in the Bill were properly met and all the authorisations given, would that be subject to legal privilege if the client met the lawyer on his own home ground?

Lord McIntosh of Haringey: My Lords, of course it could be. I should not have given way to the Minister because I had not finished my argument. The amendments do not propose a total ban on such bugging communications; they propose that the authorising officer and, if necessary, the commissioner or the circuit

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judge (according to which amendment one takes) has to be satisfied that the communication is such that

"it is likely that an abuse of legal privilege will be occurring".

That is a cautious phrase. We are not allowing this to be a matter for discussion between the authorising officer and the person giving the approval. We are not saying that it is an open and shut case and that under no circumstances will the communications not be subject to surveillance. We are saying that where it is anticipated that the information which is being obtained could be subject to legal professional privilege or could be excluded material, a case has to be made out--and the case that has to be made out is that legal privilege or confidentiality is being breached. That is a very modest position. It is not a difficult position to argue. Indeed, if it were not almost 9.15 p.m. I would certainly seek the opinion of the House, but that is pointless. The noble and learned Lord, Lord Browne-Wilkinson, has already referred to this being a sparse House--and it is. This is a matter of such fundamental importance that it deserves to be heard and debated by a full House at Third Reading, and on that basis, and on that basis alone--

Lord Hacking: My Lords, before the noble Lord sits down, he corrected me earlier when I spoke to the amendment and I must now tell him that I have been wholly persuaded by his arguments and those of the noble and learned Lord, Lord Browne-Wilkinson. In the circumstances, I hope that my noble friend will give the matter further consideration.

Lord McIntosh of Haringey: My Lords, I am grateful for that generous observation. I knew that if the noble Lord were to look at Amendment No. 28 he would see that we were covering the other kinds of confidential communication. The noble Lord strengthens the case for saying that the Government will have to listen again. The case is so comparable with that on which the House has already expressed its view today that I warn the Government that unless they modify their position on the matter, they will be defeated again next Tuesday. I beg leave to withdraw Amendment No. 27.

Amendment, by leave, withdrawn.

[Amendment No. 28 not moved.]

Lord Rodgers of Quarry Bank moved Amendment No. 29:

Page 34, line 1, leave out ("officer") and insert ("circuit judge").

The noble Lord said: My Lords, this is a consequential amendment. I beg to move.

On Question, amendment agreed to.

9.15 p.m.

Lord McIntosh of Haringey moved Amendment No. 30:

Page 34, line 2, leave out ("thinks") and insert ("reasonably believes").

The noble Lord said: My Lords, I beg to move Amendment No. 30. At the same time, I should like to speak also to Amendments Nos. 31 to 33. Although these amendments were debated in Committee, I come

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back to them without apology because the answers provided by Ministers on that occasion were totally unsatisfactory. These amendments, which replace "thinks" with "reasonably believes", "likely to be of substantial value in" with "necessary for", and "is satisfied" with "reasonably believes", and adds the phrase (which is in the code of conduct) "and that the action specified is proportionate to the aim sought to be achieved", have one purpose only. They seek to secure that the action of a policeman who seeks authorisation for intrusive surveillance shall not be justified simply on the basis of what he thinks but on an objective test.

It may or may not make a difference to the way in which the police officer makes out his application for authorisation to bug, but it makes an enormous difference to the way in which the commissioner subsequently considers whether or not it was justified. If the commissioner is entitled to say only that he thought it was likely to be of substantial value, rather than that he reasonably believed that it would be valuable or necessary, the commissioner has very little to go on in deciding whether or not it was a proper application. Unless there is an objective test there is nothing that the commissioner can do to decide whether or not the process of reasoning was in accordance with the law and with what most of us would recognise as being the occasions on which this unattractive and undesirable but inevitable process of bugging should be justified.

In responding to the amendments at an earlier stage, the noble and learned Lord the Lord Advocate, advanced a number of arguments about the meaning of different words. One definition of "think" in the dictionary is "believe", and obviously the converse is true. But he did not really address the issue of the necessity for an objective test not only at the time when the application is being prepared but, more importantly, when the commissioner is deciding whether or not the application was justified. I beg to move Amendment No. 30.

Lord Lester of Herne Hill: My Lords, with great brevity I should like to speak in support of the amendment. It seems to me that the Home Secretary ought logically to be in favour of the amendment. In his interesting essay in today's Times he writes:

"Surveillance may be authorised only if it is necessary to prevent serious crime, and may be used only against those engaged in such crime".

That is a tougher test than is proposed in this amendment. If one takes the position of the Home Secretary literally, the powers are confined to a case of actual objective necessity. In my view, rightly the noble Lord, Lord McIntosh, does not go so far. He seeks to substitute for the purely rubbery and elastic subjective test "thinks it necessary" and "is satisfied" the language of objective satisfaction which is necessary if judicial review, or any ex post facto judicial accountability, is to take place. The problem is that, left as it is, one is left with rather loose principles of English administrative law and it will be difficult to have any effective review of words like "thinks it necessary". I believe that, in accordance with the rule of law, this prevents a

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completely subjective situation from arising. I think it right that the Bill should be strengthened in this way. It will also provide some help by way of standards for whatever form of judicial authorisation is to be introduced into the Bill before it leaves Parliament. I support the amendment.

Baroness Blatch: My Lords, to make a purely personal comment, I believe the police can be forgiven for believing that there is a sort of self-indulgence in the suggestion arising from this debate that they cannot be trusted to put a good case for an application for intrusive surveillance. Such an application has to be considered against very rigorous criteria. They have to believe it necessary for the action specified to be taken on the ground that it is likely to be of substantial value; and they have to be satisfied that what the action seeks to achieve cannot reasonably be achieved by other means. Chief constables have to be satisfied by that, and, under the terms of the amendments passed in this House, so do circuit judges and commissioners. I find the suspicion about how a policeman just might interpret the provision rather offensive. Having said that, the terms--

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