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Lord McIntosh of Haringey moved Amendment No. 36:
The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendment No. 37. Having been concerned with other definitions in Clause 91, we are now concerned with one of the most critical issues; namely, the question of what constitutes serious crime.
We tabled a different amendment in Committee which we do not propose to pursue this evening. However, noble Lords who have read newspaper reports, watched television programmes and listened to the radio in the weeks since the Committee stage will be aware that one of the most pressing concerns that has arisen relates to one particular aspect of the definition of "serious crime" which is used in the Bill. I refer to the provision in Clause 91 that it is a serious crime if, among other things, it is,
I believe that everyone will agree that the "use of violence" or the search for "substantial financial gain"--presumably, illegal financial gain; indeed, I do not believe that anyone has been heard to refer to the emoluments of directors of Morgan Grenfell asset management in this context--constitute serious crimes by any standards.
The distinction most commonly made is that relating to protesters about the Newbury bypass. I believe that it will be readily acknowledged that some forms of protest at some times in recent years have been for an illegal purpose. They could, for example, be deliberately planning a riot or a serious breach of the peace. However, most conduct of this kind, and in particular the conduct of most of the people who felt very strongly about the building of the Newbury bypass, is not illegal, is not criminal conduct, and is not in pursuit of a common purpose. Yet it is covered by the definition of serious crime used in this Bill and therefore becomes a justification for police intrusive surveillance.
Public comment on these issues has been fairly widespread. One of the things which I believe has concerned people more than almost anything else is the thought that, by inadequate definition, innocent people will be brought within the scope of intrusive surveillance. I know that I shall be told that the definition has been used in legislation before. I undertake, if this amendment is agreed to, to redraft the previous legislation and insert it, if necessary, as an amendment to this Bill at Third Reading. The fact that the definition has been used before has not been adequately drawn to the notice of the public. I believe that, if they knew about it, they would not accept that it was adequate as a definition of serious crime. I beg to move the amendment.
Lord Lester of Herne Hill: My Lords, my attitude towards this amendment depends very much upon the Minister's answers to the short speech of the noble Lord, Lord McIntosh. I am not a criminal lawyer and I am probably about to make an idiot of myself by what I say. However, I do not understand why the definition of serious crime goes wider than the definition of a criminal conspiracy or an attempted criminal conspiracy. I do not understand what conduct it is designed to catch which is not covered by common law conspiracy or attempted conspiracy.
Similarly, I do not understand the previous phrase, "results in substantial financial gain", as the qualification on what is meant by "serious crime". I should be grateful if the Minister could clarify, either now or in correspondence, whether I am right in thinking that those words are wide enough to cover, for example, the case of a newspaper suspected of committing serious crimes under the Official Secrets Act or the Contempt of Court Act with a whistle-blower or public interest defence but which is liable to make substantial financial gains as a result. Are those the kinds of matters which the Government have in mind in their definition of serious crime? If so, the position is even more serious than I had anticipated.
I should be very grateful for answers to those questions, either now or hereafter, as they very much affect my decision as to whether or not to support the amendment.
Lord Renton: My Lords, it seems to me that the amendments are unnecessary because the Bill is perfectly clear as it stands. Also, to add the words "criminal" at the end of line 23 and "illegal" at the end of line 24 introduces words of limitation which would narrow the effect of the clause.
Lord Thomas of Gresford: My Lords, words of limitation are precisely what is required. That is the whole purpose of this amendment. Opposition to various clauses in this Bill has been described by the Minister as an attack upon the police or imputing motives to chief constables which are improper. The whole problem with this Bill is not so much what the chief constable or the police are likely to do; it is what they will do on instruction as an arm of the state, an arm of government. When one sees words as wide as,
Lord Browne-Wilkinson: My Lords, I am afraid I am rather at a loss to know what the amendments achieve. As I think I made clear earlier, I have the strongest objection to this whole concept of,
Baroness Blatch: My Lords, I shall read subsection (5) in this clause which simply states:
I know there is concern among your Lordships about certain aspects of the definition. Certainly the noble and learned Lord has once again reminded us of his original concern on this point. We made our position clear at Committee stage. The definition of serious crime in Clause 91 was carefully chosen. It is the one used in the legislation relating to the issue of warrants under the Interception of Communications Act 1985. It has been in place for more than a decade and has worked well. Warrants issued under the Interception of Communications Act are subject to scrutiny by an independent commissioner. None of the three distinguished members of the judiciary who have held the office of Interception Commissioner--the noble and learned Lords, Lord Lloyd, Lord Nolan, and Lord Bingham--has ever found cause to complain about the definition.
I appreciate that concern has been expressed with regard to the position of anti-road protesters. Indeed these amendments could have been tabled with that particular point in mind. However, these techniques could not be deployed except against individuals whose conduct is criminal. Surveillance is an expensive and technical activity which is resource intensive. Its use will be authorised only in the most serious cases. It has been in use for many years and there is no evidence whatsoever that the police have used it inappropriately.
It would be odd if the police or customs were to find themselves subject to different definitions to the Security Service in applying for authorisation to interfere with property in cases relating to serious crime. There are obvious benefits of consistency and, combined with the knowledge that the definition has worked for many years in existing statute, I hope that your Lordships will agree that any amendment is unnecessary.
I recognise what the noble Lord, Lord McIntosh, said about wishing to return to primary legislation as regards other statutes to bring the wording of those statutes into line with the proposals contained within these amendments. However, this was not neglected as a subject in the course of discussing the Security Service Act. Therefore I do not see that we should have to bring those measures into line with these amendments unless there was a problem. As I have said, there is no problem.
In reply to the noble Lord, Lord Lester, I shall have to write to him when I have read more carefully the particular question he posed. I shall comment on one part of what he said, and that was where he referred to a breach of contempt of court, which I understand is not a criminal act.
Page 34, line 23, at end insert ("criminal").
"conduct by a large number of persons in pursuit of a common purpose".
The other qualifications for "serious crime" are that it must involve the use of violence or result in "substantial financial gain". Of course, there is also the qualification, which is an alternative and not an addition, that the offence, or one of the offences, is an offence for which a person who has attained the age of 21 with no previous convictions,
"could reasonably be expected to be sentenced to imprisonment for a term of three years or more".
"conduct by a large number of persons in pursuit of a common purpose",
mean, other than that if it is to be serious crime then it must be criminal conduct and it must be in pursuit of an illegal purpose? Otherwise, anything that any one of us might do like, for example, joining a political party, going on a sponsored walk or--God forbid!--running in a marathon would be conduct by a large number of persons in pursuit of a common purpose. It cannot mean a legal common purpose; it cannot mean legal conduct. If the phrase "criminal conduct" is to make any sense at all, then it must mean an illegal purpose.
9.45 p.m.
"conduct by a large number of persons in pursuit of a common purpose"
one immediately thinks of demonstrations of one sort or another which are perfectly lawful. What this Bill should make clear is that the police will not be used as an arm of the state or of the executive for bugging discussions which may take place about the putting together of demonstrations of which a government would disapprove. Perhaps it is not just a matter of looking in the short term; it is a matter of looking in the long term at the effect of this sort of broad and ill-defined wording that is contained in this subsection. It is right that words of limitation should be included as this amendment suggests.
"conduct by a large number of persons in pursuit of a common purpose"
whatever that may be, whether it be criminal conduct for a common illegal purpose. That can be 100 miles away from serious crime. The actions taken against the Newbury bypass may constitute criminal conduct of a minor kind, so may other small political gatherings involving a breach of the peace or obstructing the police. Yet, that is serious crime. Having said that, I cannot see that this amendment touches that point at all, if it is not clear even to a Law Lord that the conduct has to be a crime which satisfies these requirements, and unless it is a crime it does not come within the provision. My difficulty is that it covers a multitude of tiny matters which are not serious crime, but that is not touched by this amendment.
"For the purposes of subsection (3), conduct which constitutes one or more offences shall be regarded as serious crime if, and only if".
The subsection then qualifies that statement. The definition of serious crime applied in the Bill has already been the subject of much discussion and will no doubt continue to be so.
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