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Baroness Blatch moved Amendment No. 50:
The noble Baroness said: My Lords, in speaking to Amendment No. 50, I should also like to speak to Amendments Nos. 58, 61, 62, 66, 68, 70 to 72, 79, 82, 83, 86, 88, 91, 94, 97, 100, 104, 108, 110, 115, 116 and 120. The Government have noted the concerns expressed in this House and elsewhere that scrutiny of the decisions taken by chief officers might only be carried out some months after the authorisation, when it would be too late for the commissioner to intervene effectively. This is another amendment which will be affected by the amendments debated today. We have decided to strengthen the powers and monitoring role of the commissioner. Because that strengthening is an important part of the process, I want to put on record the Government's views about these amendments.
The group of amendments relating to Clause 93 require authorising officers to notify the commissioners of all authorisations as soon as reasonably practicable. In many cases this will put the commissioners in a position to be able to scrutinise the authorisation before an operation has begun. They would be able to quash any which they did not consider to have been properly given and effectively prevent the police or customs from carrying out the intrusive surveillance. This accelerated review process will not erode the crucial principle that
For the record, I believe it is important that that is set against amendments passed earlier today. There is only one amendment to Clause 93, and it is the first. Amendment No. 50 to Clause 93 will enable the Secretary of State to make an order, subject to affirmative resolution of each House of Parliament, prescribing the information that needs to be given to the commissioners in order to carry out the review process. These proposed changes will considerably increase the workload associated with the overview function. The amendments to Clauses 95 to 97 and Schedule 7 therefore replace the existing provision for the appointment of a commissioner and provide for the Prime Minister to appoint a chief commissioner and such number of other commissioners as is deemed fit and achieve the necessary technical changes to the remainder of the Bill to give this effect. I appreciate that similar amendments have been tabled by the noble Lord, Lord McIntosh, and that there is some common ground on the need for this provision. We referred to this amendment much earlier in the debate on the main amendments.
The requirement for more than one commissioner follows directly from the amendments which have been tabled to Clause 93 requiring that all authorisations are notified to a commissioner as soon as practicable after they have been given. This need is further increased by the duty imposed on the commissioner to scrutinise notifications of operations involving particularly sensitive property or material within 48 hours of receipt. The increased workload that entails means that it is no longer realistic to expect a single commissioner to oversee effectively the authorisation process. The appointment of more than one commissioner is clearly necessary to ensure availability and speedy scrutiny.
The amendments would provide for the appointment of a chief commissioner and such number of other commissioners as required. All of the commissioners will hold, or will have held, high judicial office and will undertake the same statutory functions and be equipped with the same powers.
I believe that there is some common ground on this issue. I believe that these amendments apply much more to the amendments passed by this House in the name of the noble Lord, Lord McIntosh, than they do to those passed in the name of the noble Lord, Lord Rodgers of Quarry Bank. I beg to move.
Lord Lester of Herne Hill: I thank the Minister for that very helpful summary. I should briefly like to explain why I think that this is another area that will be affected by the amendment of the noble Lord, Lord Rodgers, as well as by that of the noble Lord, Lord McIntosh.
In his very powerful speech the noble Lord, Lord Alexander of Weedon, referred to decisions of the American Supreme Court. One of those decisions was
Baroness Hilton of Eggardon: My Lords, I agree with the noble Lord, Lord Lester. I think that, on the whole, with some probably detailed amendments, these would fit with the amendments passed earlier in that the appointment of a chief commissioner and a number of commissioners would also assist in the oversight of the whole system as proposed. However, it is difficult to address them in detail. Without examining the consequences of the previous amendments, it is not clear whether they will fit exactly. In the circumstances we welcome the broad thrust of the amendments.
Baroness Blatch: My Lords, first the amendment does not refer to the authorising officer. It relates to commissioner oversight responsibilities. Those responsibilities seem to be important, certainly in the context of one of the major amendments and the proposal set out in the Bill. Whatever happens, we take the view quite strongly that notification of every authorisation is an important strengthening safeguard and we wish to stand by that. For that reason I do not believe it would be harmful or prejudice any future discussions about which alternative was ultimately to be accepted so far as future tapping authorisation is concerned. I should like to strengthen the Bill in this way. The amendment offers an important safeguard. I commend it to the House.
On Question, amendment agreed to.
[Amendments Nos. 51 and 52 not moved.]
Baroness Blatch moved Amendment No. 53:
The noble Baroness said: My Lords, in moving Amendment No. 53, I shall speak also to Amendments Nos. 54 to 57. They achieve the effect of an amendment tabled in Committee by the noble Lord, Lord McIntosh. We have always intended to introduce a code of practice in connection with the provisions in Part III. The code of practice is a key document, forming an important component of the legislative package. The procedures for intrusive surveillance must be clearly set down for everybody to see. A government amendment in Committee to what is now Clause 121 ensured that these provisions could not be brought into force before the day on which the code of practice comes into operation. This implemented the recommendation of the Select Committee of the House of Lords on delegated powers and deregulation.
Although this, in effect, removes the discretion of the Secretary of State to issue a code of practice, it has left the remainder of Clause 94 defective. This group of amendments makes the necessary technical changes to the remainder of the clause. Taken together, these changes ensure that the Secretary of State must issue a code of practice and that it be brought into operation by means of statutory instruments. I beg to move.
Page 36, line 43, at end insert--
("(5A) Where a person gives, renews or cancels an authorisation, he shall, as soon as is reasonably practicable, give notice in writing that he has done so to the Chief Commissioner appointed under section 95.
(5B) A notice shall be treated as given to the Chief Commissioner under subsection (5A) if it is given, in accordance with arrangements made by the Chief Commissioner, to any Commissioner appointed under section 95.
(5C) A notice under subsection (5A) shall specify such matters as the Secretary of State shall by order prescribe.
(5D) An order under subsection (5C) shall be made by statutory instrument; but no order shall be made unless a draft has been laid before, and approved by resolution of, each House of Parliament.").
"A prior warrant establishes presumptive validity of the surveillance and will minimize the burden of justification in post-surveillance judicial review".
In plain language that means that if the Government accept the Rodgers amendment or the McIntosh amendment--certainly the Rodgers amendment--one beneficial consequence will be that it will reduce the workload, expense and bureaucracy involved in what the Supreme Court termed "post-surveillance judicial review". In working out the balance between judicial authorisation and post-surveillance judicial review, the Minister and her colleagues may find the judgment and others quite helpful. It may be that they will come to appreciate the practical advantages for the police service and the Home Office as well as for the ordinary citizen in the requirements contained in both the amendments already carried by the House. That is why we should return to this matter when the Government have had a chance to take stock. I hope that this case will provide some useful guidance.
Page 37, line 7, leave out ("may") and insert ("shall").
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