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Baroness Hilton of Eggardon: My Lords, we welcome the fact that the code of practice is to be made mandatory and that it is to be part of a statutory instrument. I am grateful to the Minister for bringing forward these amendments.
On Question, amendment agreed to.
Baroness Blatch moved Amendments Nos. 54 to 57:
On Question, amendments agreed to.
Baroness Blatch moved Amendment No. 58:
On Question, amendment agreed to.
[Amendments Nos. 59 and 60 not moved.]
Baroness Blatch moved Amendments Nos. 61 and 62:
On Questions, amendments agreed to.
Baroness Hilton of Eggardon moved Amendment No. 63:
On Question, amendment agreed to.
Baroness Hilton of Eggardon moved Amendment No. 64:
On Question, amendment agreed to.
Baroness Hilton of Eggardon moved Amendment No. 65:
On Question, amendment agreed to.
The Deputy Speaker: My Lords, if Amendment No. 66 is agreed to I cannot call Amendment No. 67:
Baroness Blatch moved Amendment No. 66:
On Question, amendment agreed to.
Baroness Blatch moved Amendment No. 68:
On Question, amendment agreed to.
Baroness Hilton of Eggardon moved Amendment No. 69:
On Question, amendment agreed to.
Baroness Hilton of Eggardon moved Amendment No. 70:
On Question, amendment agreed to.
Baroness Blatch moved Amendment No. 71:
On Question, amendment agreed to.
Clause 96 [Principal functions of Commissioner]:
Baroness Blatch moved Amendment No. 72:
On Question, amendment agreed to.
Baroness Hilton of Eggardon moved Amendment No. 73:
On Question, amendment agreed to.
Baroness Hilton of Eggardon moved Amendment No. 74:
The noble Baroness said: My Lords, I beg to move.
Baroness Blatch: My Lords, perhaps I may help the House. This is definitely not a consequential amendment. It is free standing within the block of amendments and we wish to oppose it. It has been spoken to, but it is a convention of the House that when a block of amendments is put to the House, those amendments which are consequential are accepted. We have honoured that decision throughout. However, there were a number of amendments within that block which were free standing and non-consequential. Therefore, we wish to oppose the amendment.
Baroness Hilton of Eggardon: My Lords, the Minister places me in some difficulty on this point. The amendments were spoken to en bloc at the earlier stage and we had no notification that some of them were seen as non-consequential. They seem to fall within the same principle. I should be grateful if the Minister will tell us which other amendments within the block the Government will be opposing. I was not aware that this situation was going to arise.
Baroness Blatch: My Lords, it is extremely unconventional to be asked which future amendments we shall be opposing but we shall oppose Amendments Nos. 77, 80 and 89.
Lord Lester of Herne Hill: My Lords, is this not an example of the kind of problem to which the noble Lord, Lord Williams of Mostyn, and I were drawing attention? This amendment seeks to give the commissioner an additional, specific power to review every authorisation under Sections 91 and 93. Whether or not that power is desirable is greatly influenced by what judicial authorisation procedure is agreed to eventually by the House. Again, I find it difficult to achieve the right balance until one has taken stock of the Bill as a whole. I wonder therefore whether it is sensible to be dealing with these matters at this stage.
Baroness Blatch: My Lords, it is a pity that the noble Lord, Lord McIntosh, is not in the House at the moment. When he spoke to this group of amendments, he indicated to the House that he was happy with the Government's version of these amendments. Government Amendment No. 76 would achieve more successfully the effect of his amendment. When I listened to the noble Lord, I understood that he was happy with that.
Baroness Hilton of Eggardon: My Lords, in that event, I shall not press the amendment and I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Baroness Blatch moved Amendment No. 76:
The noble Baroness said: My Lords, Amendments Nos.76 and 101 to 103 introduce important additional safeguards to the provisions of the Bill. They place a duty on the commissioners to scrutinise all notifications sent to them by authorising officers and to ensure that authorisations in certain specified categories are scrutinised within 48 hours of receipt.
Those categories of authorisations subject to speedy scrutiny will be specified by a statutory instrument which will be approved by Parliament but should include those matters subject to legal privilege, journalistic material and medical records. That will ensure that operations involving particularly sensitive material will be seen quickly by the commissioners, and, in most cases, before an operation is even started. It also provides the commissioners with the power to quash authorisations where they do not consider they have been properly given and order the destruction of any material so obtained.
In scrutinising the authorisations, the commissioners will apply the principles of judicial review. We believe that an important distinction needs to be drawn between the roles of the authorising officer and the commissioners. The authorising officer is part of the investigation process and will be making an operational judgment based on his knowledge and expertise about policing methods. He will be considering whether there is any alternative way of carrying out the operation which does not involve intrusive surveillance and which should be tried first. The commissioners' role is to supervise the decision-making process to ensure that the criteria and provisions of the Bill have been properly applied. Again, under the amendment, the commissioner continues to have that role regarding whoever makes the decision.
The role of the commissioners is not to "second guess" the decisions of the operational officers. Their training is in the law and they should apply the same principles which are used in judicial reviews. These are that the decision is a reasonable one, that there has been no procedural impropriety in the way that the decision was reached or that there was a legal basis for the decision. The other amendments tie these new powers in with those already outlined in Schedule 7 or are semantic ones which do not effect changes to the powers of the Bill. I beg to move.
Page 37, line 9, leave out from beginning to ("a") and insert ("Before issuing").
Page 37, line 10, leave out ("he") and insert ("the Secretary of State").
Page 37, line 15, leave out subsection (4) and insert--
("(4) The code of practice laid before Parliament in draft under subsection (3) shall not be brought into operation except in accordance with an order made by the Secretary of State by statutory instrument.").
Page 37, line 22, leave out ("force") and insert ("operation").
Page 38, line 4, leave out ("a Commissioner") and insert--
("(a) a Chief Commissioner, and
(b) such number of other Commissioners as the Prime Minister thinks fit,").
Page 38, line 6, leave out first ("person") and insert ("persons").
Page 38, line 6, leave out from ("be") to ("held") in line 7 and insert ("persons who hold or have").
Page 38, line 9, leave out first ("The") and insert ("Each").
Page 38, line 11, leave out second ("the") and insert ("each").
Page 38, line 13, leave out ("may") and insert ("shall").
Page 38, line 13, after second ("the") insert ("Chief").
Page 38, line 14, leave out ("Commissioner") and insert ("Commissioners").
10.45 p.m.
Page 38, line 14, leave out ("Secretary of State thinks") and insert ("Commissioners think").
Page 38, line 15, leave out ("his") and insert ("their").
Page 38, line 15, at end insert--
("( ) Anything authorised or required by or under this Part to be done by the Chief Commissioner may be done by any of the Commissioners who is authorised generally or specially in that behalf by the Chief Commissioner; and the references in section 96(4) and 97(4) to the Chief Commissioner shall be construed accordingly.").
Page 38, line 16, after ("The") insert ("Chief").
Page 38, line 16, leave out ("Commissioner") and insert ("Commissioners").
Page 38, line 18, at end insert--
("(aa) review every authorisation given under sections 91 and 93, and").
Page 38, line 22, at end insert--
("(1A) In discharging his duties under subsection (1)(a), the Chief Commissioner shall scrutinise any notice given to him under section 93(5A); and, in the case of such notices as the Secretary of State shall by order prescribe, he shall carry out that scrutiny within the period of 48 hours beginning with his receipt of the notice.
(1B) An order under subsection (1A) 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.
(1C) Where, at any time, the Chief Commissioner determines that the person who gave or renewed an authorisation under this Part was not acting properly in doing so, he may--
(a) quash the authorisation, and
(b) order any records relating to the information obtained by virtue of the authorisation (other than records required for pending criminal or civil proceedings) to be destroyed.
(1D) In making a determination under subsection (1C), the Chief Commissioner shall apply the principles applied by a court on an application for judicial review.
(1E) Where the Chief Commissioner makes such a determination as is mentioned in subsection (1C), he shall make a report of his findings to the authorising officer who gave the authorisation or in whose absence it was given.
Paragraph 5 of Schedule 7 shall apply to this subsection as it applies to that Schedule.").
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