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Lord Lester of Herne Hill: My Lords, perhaps I can explain what really troubles me and then clarify my question. There are some crimes which are of a political flavour. There are offences against public order, there are offences concerning the administration of justice, Official Secrets Act crimes, Contempt of Court Act crimes and public order offences, and they are all of that character.
Would the noble Baroness the Minister first agree that one might want to adopt a different approach with ordinary policing and surveillance in such matters, as distinct from the kind of criteria for the Security Services in dealing with real national security issues? Secondly, I am seeking to discover whether this concerns the fears of the noble and learned Lord, Lord Browne-Wilkinson, that this can be a catch-all provision to cover a wide range of serious crimes in a theoretical sense, which can cover a whole range of matters of a political nature, like demonstrators and so on indulging in criminal trespass, let us say, and matters of that kind. The House is attempting to discover whether there are any limits on this very rubbery language. It may have been used before in a national security context or a telephone tapping context. Here the powers are draconian and a part of ordinary policing. That is the concern I am trying to convey.
Baroness Blatch: My Lords, a number of points occurred to me while the noble Lord was speaking.
First, some of those decisions are operational matters for the police to determine. Secondly, the authorisations will, of course, be controlled. They have to apply for authorisation, and the authorisation given has to be taken in the context of them complying with all the provisions that will be set out in the Act. The most practical down pressure on the police will, of course, be resources. I have heard nothing from the noble Lords opposite about pouring more resources into these activities. Certainly, as well funded as we believe the police are, we think that they would give some priority to the more serious crime because that is what they are pursuing. I simply do not see the idea that they should spend their time bugging and carrying out surveillance on road protesters involved in petty crime as a threat.The best possible judgment that we can make at this stage is to look at the record of how the police have operated with precisely these words in other statutes. We can come to only one conclusion, that they have acted with great responsibility and restraint, and it is our view that they will continue to do that under the provisions of this Bill.
The accountability mechanisms in the Bill have been strengthened to require that all authorisations will be forwarded to the commissioner for scrutiny as soon as possible. The commissioner, I believe, would quickly quash any authorisations which he considered inappropriate. For purposes, again, of consistency with existing statute, and praying in aid the fine record of the police in exercising their activities consistent with the wording, I believe that the amendment should not be pressed.
Lord Browne-Wilkinson: My Lords, as I understand the burden of the answer given, it is not that the section does not authorise such gatherings or groups of people to be treated as being guilty of serious crime, but that our present police force, our present Home Office, our present political set up will not so treat it because resources are short. I am sorry, but I will leave the noble Minister alone shortly. I know I am being tiresome. Again I come back to the question that we are legislating not for this Home Secretary, not for these police--nobody is being rude about anybody--but what is being done is putting on the statute book a power which can be exercised by less scrupulous people.
As I see it, to treat as a serious crime a meeting of a number of people with whom they disagree who may be obstructing the highway or whatever they like, is constitutional change. What I hoped the Minister would say was that in her reading of it and in her advice, it would not cover such a case, but one never has that assurance. That is the crucial matter. I am sorry, but I promise that I shall stay quiet.
Baroness Blatch: My Lords, with the leave of the House, the noble and learned Lord has the habit of having the last word and asking me not to respond to it. I feel that I must. Such is the system that under any alternative--whether it is the amendments passed earlier or the proposals originally set out in the Bill--no one person can act in a machiavellian way. No one person can exercise their duties cavalierly. There are many checks and balances in the system.
An applicant for authorisation has to go to a chief constable. A chief constable must go to a commissioner. The commissioner has powers to quash. Under the other arrangements resulting from the amendments, other steps are in place. It will continue to be an operational matter. The police are bound by endless codes of practice, criminal evidence Acts, and the rigours of the systems set out in the Bill. They will always be subject to those requirements. The idea that we have responsible chief constables now but that we may not have them next year or some time in the future, with the transparent system we now have, is unthinkable.
Under any alternative within the Bill, the authorisations will continue to be controlled. Unless a great deal more money falls from Heaven, the financial constraints on the Bill will mean that they will continue to pursue serious crime and not play around with trivia.
Lord Williams of Mostyn: My Lords, perhaps I may ask the Minister one question. She said that the commissioner would quash an application where it is inappropriate. I wonder whether she could assist me by specifying upon what basis the commissioner might so quash because if one looks at the scheme Clause 91(3) provides:
- " ... where the authorising officer thinks it necessary for the action specified to be taken on the ground that it is likely to be of substantial value in the prevention or detection of serious crime".
- " ... conduct which constitutes one or more offences shall be regarded as serious crime ...".
Baroness Blatch: My Lords, it must be for the judgment of the commissioner or circuit judge. It would be for the commissioner or the circuit judge if they believe that the degree of activity upon which the police wish to intrude is such that the commissioner or circuit judge regards that not to be the best use of surveillance and that the police should be pursuing more serious crime. The commissioner must be bound by the definitions within the Bill. There is flexibility there. There has to be flexibility. When one is seeking intelligence and pursuing serious crime, it is always difficult to be specific at the outset. The case will be put to the commissioner or the circuit judge for them to make a judgment upon it.
Lord Williams of Mostyn: My Lords, I thank the Minister for that elucidation, which I take to mean that if the amendments which were passed by your Lordships earlier this evening, in whatever form, become part of the Act, the pre-authorising judicial officer will have a discretion based upon a proportional response to strike down the application. I take that to be the Government's position.
10 p.m.
Lord McIntosh of Haringey: My Lords, I do not think the Minister had better answer that because she has put herself into very deep water already, or my noble friend has done so. It really is not good enough for her to respond as she has been by talking as if the restriction on police financial resources is the proper constraint to the use of surveillance techniques.
We in this House today are concerned with the legal, statutory basis on which this intrusive surveillance is to be permitted. The Minister has more than once now returned to this claim that of course it will be all right, there will only be bugging in the cases of serious crime because there is not enough money despite, as the Government must say, the adequate funding of the police generally. There is not enough money for them to bug except in cases of genuine serious crime. Then, when my noble friend Lord Williams questions what she is saying, she says: "Well, the commissioner who is reviewing the decision afterwards will look at this case and consider whether within these limited resources this was the most important case for intrusive surveillance, or whether something which might have come up somewhere else could have been considered to be more important, and the consideration for that will be the proper use of resources." When my noble friend questioned her on that point she really was not able to answer it at all. I have never, in 14 years' experience in this House, heard such irrelevant or inadequate answers as we have been hearing on some of these amendments today. It really is deplorable.
I am going to withdraw this amendment, not because of anything the Minister has said but because of the remarks of the noble and learned Lord, Lord Browne-Wilkinson, who pointed out to me, I am afraid correctly, that, greatly objectionable as the wording in the Bill is, my amendment would not actually achieve anything. If the Minister will forgive me, I shall beg leave to withdraw the amendment.
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