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Lord McIntosh of Haringey: My Lords, of course, since the Government have failed to take a view on the amendments which were passed last time or have certainly failed also to communicate such views to the House, to some extent there must be a truth in what the Minister says. She argues that we are debating in a vacuum. The vacuum was created by amendments carried against the Government, but the Bill is in the hands of the Government. It has been and remains their
responsibility to advise the House about what the Government's response to those amendments will be so that the House can complete its proper revising function.
Baroness Blatch: My Lords, with the leave of the House, I am grateful to the noble Lord for giving way. This Bill is not in the hands of the Government. We have a democratic process and this Bill is in the hands of Parliament. The elected Chamber has not yet had an opportunity to consider the Bill, but it will do so. There is an arrogance if we assume that somehow, all issues are resolved by this Chamber. It must be for the other place to take a view and to be informed that this House at this moment does not have a definitive view on this matter.
Lord McIntosh of Haringey: My Lords, we are splitting hairs about words. The Bill had the name of the noble Baroness on it when it was first introduced in this House, and when it goes to another place, it will have the name of Mr. Secretary Howard. They are responsible for promoting it in Parliament and it is for Parliament to react to it as it thinks fit, as it has done. Therefore I cannot accept the argument that there is something wrong about our seeking to amend the Bill, as it has been amended in the past, and as we think it should continue to be amended.
I am sorry that the noble Lord, Lord Hacking, has given up on my belated legal education. He must think I am hopeless if he is not even willing to explain where I go wrong. However, the fundamental issue remains; namely, that the mis-statements of my position by the Minister in the final part of her speech were so profound that in anyone else I would think they were wilful mis-statements. Of course we are not proposing that there should be a to and fro between two different kinds of commissioners. Under the Bill an application made by subordinates will be authorised by a chief officer. It cannot be acted upon except with the approval of the commissioner. I was merely making helpful suggestions as to who that commissioner might be, as one of a body of commissioners introduced to the Bill--I remind the House--by the Government in their own amendments. The Minister claimed that it would be a repetitive process because the review and the handling of complaints in Schedule 7 would be carried out by someone of the same rank and type, if not the identical person, to the person giving the approval in the first place. However, the process is entirely different.
The person giving the approval is looking at one case. As the Government have acknowledged in their own amendments, review is a review of a case as one of all of the cases for review. It is a comparative review and it can be conducted subsequently--as the Government have always argued--only by someone who has before him the evidence about all of the cases of intrusive surveillance which have been authorised and approved. I simply cannot accept there is any element of second guessing here.
4.45 p.m.
Lord Browne-Wilkinson: My Lords, I am not sure that the noble Lord has it quite right. I say that with great respect and not in any way associating myself with
the views of the noble Lord, Lord Hacking. It is difficult to appreciate in the Bill as it now stands but as originally drafted the commissioner's function was not simply to review the operation of the Bill as a whole but to consider and investigate complaints. Under the Government amendments introduced last Monday, the commissioners are given a different role; namely, to look at each authorisation. In relation to those two activities they are reviewing an individual decision in each case, not the general policy. The provisions to which the noble Lord objects provide that on such review they apply judicial review principles; that is to say, they ask: has the authoriser lost his marbles? and not the question: would I, the judge, if the authoriser, have authorised it?
Lord McIntosh of Haringey: My Lords, I am most grateful to the noble and learned Lord. If this goes on, I hope I shall not be faced with a bill from the Council for Legal Education, or indeed from any individual lawyer in this House. I am enormously grateful to the noble and learned Lord for his definition of judicial review. I shall use the definition--has the authoriser lost his marbles?--in the future. That makes some sense and is much clearer to the layman than most of the other definitions which have been used.
I acknowledge--not least because of Government amendments, although also to a certain extent because of Opposition amendments--that the Bill is a moving target. I have sought to argue that the purpose of widening the principles of review and the consideration of complaints is still fundamentally there. However, I acknowledge, on the advice of the noble and learned Lord, Lord Browne-Wilkinson, that it would be inadvisable--certainly for someone with as little skill in the use of firearms as myself--to seek to bring down a moving target at this stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Williams of Mostyn moved Amendment No. 6:
After Clause 98, insert the following new clause--
(" . The Secretary of State shall appoint a person who holds or has held high judicial office within the meaning of the Appellate Jurisdiction Act 1876 to review the operation of this Part not more than one year after the coming into effect of this Part and a report on the results of that review shall be laid before both Houses of Parliament.").
The noble Lord said: My Lords, this amendment requires the Secretary of State to appoint the appropriate person, namely, a senior judicial person, to carry out a review of the operation of this part of the Bill not more than a year after its coming into effect. This is triggered by the quality and nature of the review which the noble and learned Lord, Lord Lloyd of Berwick, recently carried out of, among other things, the Prevention of Terrorism Act, the Emergency Provisions Act and the Interception of Communications Act in so far as they refer to Northern Ireland.
It has also been helpful to hear on previous occasions in this House, and a few moments ago, the remarks of the noble and learned Lord, Lord Browne-Wilkinson, and of the noble Baroness, Lady Hilton of Eggardon. This amendment may be too narrowly drafted. It is tabled to inquire what the Government's views may be. This is a useful question to pose because inevitably in the context of the Bill we have focused on intrusion into privacy by the police. In a sense that is an injustice to them because it is a limited view. There are many other intrusive agencies in this country such as private investigators of different sorts, journalists and criminals.
As the noble and learned Lord, Lord Browne-Wilkinson, and the noble Baroness, Lady Hilton of Eggardon, pointed out, intrusive sophisticated devices are readily available on the commercial market and the review I am suggesting should possibly be wider than is suggested in the confines of the amendment. For example, what is the Government's view about admissibility in evidence of material under the Interception of Communications Act? Ought there to be a licensing scheme for intrusive electronic devices which do not require entry into private premises? How does intrusion by other agencies, for example private detectives, industrial espionage and others, chime in with the regime we are imposing on the police? I readily confess that the amendment is rather narrowly drawn--it had to be because of the nature of the Bill--but it would be helpful to have a preliminary tentative government view as to whether a general inquiry into intrusion into privacy, private premises, private conversations and so forth, is now appropriate. I beg to move.
Lord Renton: My Lords, I suggest that the amendment is not appropriate. If we look at Clause 98, we see that the chief commissioner; that is, the person appointed under Clause 96 by the Prime Minister, and who has held high judicial office, shall,
Baroness Blatch: My Lords, I am grateful to my noble friend for that intervention because what we now have is a chief constable, a commissioner who is to approve the authorisation, who would be a High Court judge, a further commissioner or body of commissioners to review the authorising officer, as mentioned a moment ago by the noble Lord, Lord McIntosh of Haringey, and now a further person, also holding high judicial office, to review the operation of Part III. As the noble Lord has just suggested, it is not simply a matter of reviewing the operation of Part III; it is a wider question than that. Certainly the points made by my
At present under the Bill we have circuit judges and commissioners authorising intrusive surveillance operations. And we have a chief commissioner and commissioners reviewing the authorisations given by themselves or by judges, with the chief commissioner reporting annually to the Prime Minister on the discharge of his functions. This amendment seeks to introduce yet another layer, whose role will be to review the reviewer.
I believe that the amendment is unnecessary, as my noble friend Lord Renton said. Government amendments approved at Report stage provide for the appointment of a chief commissioner and such a number of other commissioners as the Prime Minister sees fit, whose role and responsibilities will include keeping under review the performance of functions under Part III of the Bill. Provisions also require that an annual report be submitted to the Prime Minister and that the commissioner may report to the Prime Minister at any time on the discharge of his functions. Annual reports, as we have said on many occasions, will be laid before Parliament.
I believe that that is sufficient. From what the noble Lord, Lord Williams of Mostyn, said, he will not press the amendment. But at least there is something on the record for the other place to consider.
"make an annual report on the discharge of his functions to the Prime Minister...The Prime Minister shall lay before each House of Parliament a copy"
of that report. I should have thought that that gives us all that we could reasonably require. To say that the Secretary of State shall appoint yet another person who has held high judicial office,
"to review the operation of this Part not more than one year after the coming into effect of this Part"
is, quite frankly, duplicating. I say with respect that that is over-zealous and unnecessary.
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