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Lord Lester of Herne Hill: My Lords, I am grateful to the Minister for giving way. The last thing I seek in supporting this amendment is to impute bad motives or intentions, or even bad practice, to anybody. I should take precisely the same view if language of this kind appeared in relation to a Secretary of State of a government of whatever colour. The objection is not to the possibility of malpractice; it is simply that a public officer of the state exercising draconian powers ought to satisfy a test of objective satisfaction and not merely subjective satisfaction. That is not an unreasonable requirement. The principles of judicial review are quite generous in what they allow to the decision taker. There is no question here of suggesting that police habitually abuse their powers. It is simply a matter of proper control by the rule of law.
Baroness Blatch: My Lords, I repeat that it was a personal observation on what was said during the course of the debate earlier and during debate on this amendment. I do not withdraw my remark. The criteria and rigour of the code of practice that will have to be satisfied by anybody applying for such an activity are such that I do not take issue with the fact that a police officer applying for permission to use surveillance thinks the action necessary and that it is "likely to be of substantial value". Frankly, it is a test that I would entrust to the police.
The terms in the Bill are those that are used in the Interception of Communications Act and the Intelligence Services Act. We see no reason to change them. Furthermore, as I said, I am not persuaded that the phrase,
- "likely to be of substantial value",
We must also remember that these are primarily intelligence gathering operations against our most elusive and difficult serious criminals who must be rejoicing today in what has happened in this House. On occasions it can be very difficult for an authorising officer to be sure that the action he authorises will ultimately lead to the prevention or detection of serious crime. We can, however, be satisfied that the action "is likely to be of substantial value" in the investigation process.
With regard to Amendment No. 33, we have made clear in the Bill that authorisation should be given only in cases involving serious crime and where what the action seeks to achieve cannot reasonably be achieved by other means. A code of practice, a draft of which noble Lords have seen, introduces a further element of proportionality. Authorising officers must satisfy themselves that the degree of intrusion into the privacy of those affected by surveillance is commensurate with the seriousness of the offence. I believe that the code and the need for consistency with other legislation concerning similar applications are sufficient to satisfy the concerns of your Lordships. I therefore hope that the amendment will not be pressed.
Lord Thomas of Gresford: My Lords, before the Minister sits down, she said a moment ago that serious criminals must be rejoicing in what has happened today. She talks about proportionality. Can she please be proportionate in a comment such as that, which is far beyond what I should expect to hear in this House? To say that serious criminals will rejoice because a judge or a commissioner has to authorise the bugging of private homes sounds completely out of proportion.
Lord McIntosh of Haringey: My Lords, I agree with the noble Lord, Lord Thomas. I believe that the Minister, in her personal comments as well as in what she said afterwards, was way over the top in her response to the amendments. I am afraid that the answer was as unsatisfactory as that given by the noble and learned Lord the Lord Advocate in Committee. At no stage in the phrases with which she criticised the semantics of the amendment was there any recognition of its most important element. The most important element is to provide an objective test which can be evaluated by a commissioner when the matter comes up for subsequent review.
The Minister, quite unnecessarily, said that the amendment was casting aspersions on the motivations or the intentions of police officers and that they would find it offensive. How can that be so? In respect of almost everything that any of us do in this life we are subject to criticism from our colleagues, opponents, bosses, subordinates, or whoever. One of the issues about which people are entitled to be concerned when they look at what we do in the world, in public life, in business or wherever is whether our intentions were honourable. That affects the way in which they make a judgment about the issue. In this case, the Bill is so drafted that the commissioner who is undertaking the review cannot look at whether the intentions of the policeman making the application were right. He cannot
look at whether the policeman considered adequately what the alternatives were. He can look only at whether the policeman thinks that it is appropriate--
Baroness Blatch: My Lords, with the leave of the House, what does the noble Lord mean by "cannot look at"? In the course of considering whether authorisation should be given, the police officer requesting an application can be quizzed in all kinds of ways; for instance, "What makes you think you have good reason for this activity?". He will be quizzed on all of those things; on what it is that makes them think that it would add substantial value to their information.
Lord McIntosh of Haringey: My Lords, the Minister has exactly made my point. I shall try to quote her precisely. She said, "What is it that made you think you had good reason to act in this way?". The commissioner can say that only if the test is whether he reasonably believes, not whether he thinks. "What made you think that you had good reason?", is exactly what the amendment says and what the Bill does not say--exactly! I shall put this matter to the House for decision.
9.28 p.m.
On Question, Whether the said amendment (No. 30) shall be agreed to?
Their Lordships divided: Contents, 33; Not-Contents, 82.
Acton, L.
Addington, L.
Berkeley, L.
Brightman, L.
Calverley, L.
Carlisle, E.
Carter, L.
Clancarty, E.
Cross, V.
Graham of Edmonton, L. [Teller.]
Grey, E.
Hemingford, L.
Hilton of Eggardon, B. [Teller.]
Kennet, L.
Kilbracken, L.
Lester of Herne Hill, L.
Lockwood, B.
McCarthy, L.
McIntosh of Haringey, L.
Mar and Kellie, E.
Merlyn-Rees, L.
Monkswell, L.
Norton, L.
Ramsay of Cartvale, B.
Rodgers of Quarry Bank, L.
Russell, E.
Taylor of Blackburn, L.
Taylor of Gryfe, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Williams of Crosby, B.
Williams of Mostyn, L.
Winston, L.
Anelay of St. Johns, B.
Astor of Hever, L.
Attlee, E.
Balfour, E.
Belstead, L.
Biddulph, L.
Blaker, L.
Blatch, B.
Bowness, L.
Brabazon of Tara, L.
Bridgeman, V.
Brougham and Vaux, L.
Byford, B.
Cadman, L.
Campbell of Alloway, L.
Carnock, L.
Chalker of Wallasey, B.
Chesham, L. [Teller.]
Clanwilliam, E.
Courtown, E.
Craigmyle, L.
Cranborne, V. [Lord Privy Seal.] Cumberlege, B.
Dean of Harptree, L.
Denbigh, E.
Denton of Wakefield, B.
Dixon-Smith, L.
Downshire, M.
Dundonald, E.
Eccles of Moulton, B.
Elliott of Morpeth, L.
Elton, L.
Feldman, L.
Ferrers, E.
Fraser of Carmyllie, L.
Gisborough, L.
Goschen, V.
Gray, L.
Harmsworth, L.
Henley, L.
Hogg, B.
Holderness, L.
HolmPatrick, L.
Howe, E.
Inglewood, L.
Kimball, L.
Lindsay, E.
Long, V.
Lucas, L.
Lucas of Chilworth, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
McConnell, L.
Mackay of Ardbrecknish, L.
Mackay of Clashfern, L. [Lord Chancellor.] Mackay of Drumadoon, L.
Miller of Hendon, B.
Monteagle of Brandon, L.
Montgomery of Alamein, V.
Mountevans, L.
Northesk, E.
O'Cathain, B.
Pilkington of Oxenford, L.
Reay, L.
Renwick, L.
Rotherwick, L.
St. John of Fawsley, L.
Seccombe, B.
Selborne, E.
Shaw of Northstead, L.
Shrewsbury, E.
Strathclyde, L. [Teller.]
Swinfen, L.
Thomas of Gwydir, L.
Trumpington, B.
Ullswater, V.
Vivian, L.
Walker of Worcester, L.
Wise, L.
Wrottesley, L.
Wynford, L.
Resolved in the negative, and amendment disagreed to accordingly.
9.35 p.m.
[Amendments Nos. 31 to 33 not moved.]
Lord Lester of Herne Hill moved Amendment No. 34:
The noble Lord said: My Lords, this is a consequential amendment. I beg to move.
On Question, amendment agreed to.
[Amendment No. 35 not moved.]
Page 34, line 11, leave out subsection (4) and insert--
("(4) Applications for decisions under subsection (2) may be made to a circuit judge by--
(a) a police officer of a rank not lower than that of Assistant Chief Constable of a police force maintained under section 2 of the Police Act 1996 (maintenance of police forces for areas in England and Wales except London);
(b) a police officer of a rank not lower than that of commander in the metropolitan police force;
(c) a police officer of a rank not lower than that of commander in the City of London police force;
(d) a police officer of a rank not lower than that of Assistant Chief Constable of a police force maintained under or by virtue of section 1 of the Police (Scotland) Act 1967 (maintenance of police forces for areas in Scotland);
(e) a police officer of a rank not lower than that of Deputy Chief Constable of the Royal Ulster constabulary;
(f) NCIS officers designated by the Director General of NCIS for this purpose;
(g) NCS officers designated by the Director General of NCS for this purpose;
(h) customs officers designated by the Commissioners of Customs and Excise for this purpose.").
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