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Lord McIntosh of Haringey: My Lords, we are all grateful to the Minister for the clarity with which she has introduced these complex amendments. As the House will know, they occupied a great deal of time when the Bill was before this House and a considerable amount of time when the Bill was considered in the Commons, and particularly when it was in Committee there.

The Minister was generous enough to acknowledge that it had been necessary to build upon rather than reverse the amendments in my name that had been carried by the House. She is right to point out the complexity of the issues. That is apparent from the complexity of the amendments that have been passed by the Commons. Indeed, when I compare the complexity of these amendments with the relevant simplicity of my own I acknowledge that the drafting of legislation from scratch is not one of my strengths.

There are still areas in which we can take exception to what is being done. Referring to the important Amendment No. 36, I regret that the restriction of the location of intrusive surveillance is as great as it is. I do not believe that it makes very good sense to include in judicial authorisation office premises without including other places of work. Our intention was to have a wider remit for judicial authorisation. I do not believe that the restriction relating to office premises will work very well.

I acknowledge that the amendments now spell out in very much greater detail than we did the enormously important issues of legal privilege, confidential personal information and confidential journalistic information. These are important changes to the Bill that bring it into line with international legislation, which I am still convinced the original Bill would not have achieved. I am sorry that the noble and learned Lord, Lord Browne-Wilkinson, who played such a distinguished part in the deliberations of these amendments, is not in his place. I believe that we should all pay tribute to him for his persistence, clarity and grasp of the fundamental principles of civil liberty which infused his contribution. I believe--I hope he agrees--that they have resulted in a satisfactory outcome.

I turn to the amendments dealing with complaints and appeals. It is necessary that there should be an opportunity for appeals by authorising officers, and they are provided for in Amendments Nos. 48 and 49. I welcome the fact that Amendment No. 50, which introduces a new clause, allows for appeals by complainants on a much wider basis than the very limited judicial review procedures provided in the original Bill. At the time I believed that the least valid complaint about our amendments was that the commissioner who authorised surveillance in the first place would be in difficulty because he would also be responsible for review. I felt that that could be overcome by the provision of a body of commissioners. I tabled amendments comparable with those of the Government to ensure that there would be a body of commissioners,

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thus avoiding a potential conflict of interest. By their amendments to Clauses 96 and 98 the Government have ensured that the separation of responsibility between initial authorisation and overall review is secured by distinguishing between the role of the commissioner and that of the Chief Commissioner. That seems to us to be a satisfactory outcome.

All in all, without wanting to appear in any way triumphalist I believe that the concerns of the House, so overwhelmingly expressed on the vote on my amendments, as the Bill was originally before your Lordships have been fairly met by the Government. I thank them and congratulate them on producing a Bill which, in this respect, is a substantially better one than that originally put before us.

Lord Rodgers of Quarry Bank: My Lords, on the eve of Prorogation we on these Benches would have most welcomed amendments that set aside Parts II and III, which we are now discussing, and Part V for further reflection and consultation in the knowledge that, when that had taken place, they could be brought back in a separate Bill before the end of the calendar year. That is not the case. We must therefore turn our minds to the amendments before us.

I too welcome the acceptance by the Government of the principle of judicial authorisation. Although the Government have chosen to substitute the word "approval" for "authorisation", I do not mind such a cosmetic change (which I believe to be semantic) if it enables them to do what this House judges to be right. I welcome the changes that have been made. I am glad that the Government recognised the force of opinion in this House and, more importantly, that the force of opinion reflected what was right.

The noble Lord, Lord McIntosh of Haringey, referred to one matter of disagreement in terms of the amendments which were carried by this House: the role of the commissioners. I too welcome the change which I understand is embodied in some of the amendments that we are now discussing. But it remains to be seen whether the distinction between the Chief Commissioner and the remaining commissioners is sufficient to ensure that those who approve-- which I understand means "authorise"--electronic surveillance will not be those who review it. Time will tell. We welcome the amendment, but that is one matter that we will want to monitor.

Equally, we shall want to watch very closely how Amendment No. 36 works. When the original amendment of the noble Lord, Lord McIntosh, was moved in this House I was concerned about whether the door was being left wide open for the emergence of provisions to enable the Police Service--I make no criticism--to decide to go ahead with electronic surveillance without turning to one of the commissioners or (as I would prefer) a High Court judge. If the amendment closes that gap, we should be delighted; but we shall want to watch very carefully how many of the authorisations go forward without judicial approval in the light of experience. We still believe that approval by a High Court judge is better. We regret that the proposals were not made in the original legislation.

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Having said that, we welcome the changes. I too am grateful to the noble Baroness for making the changes so specific and clear to the House this afternoon.

The Lord Bishop of Ripon: My Lords, I should like to speak to Amendment No. 38, to which the Minister has already spoken. The provision in the Commons amendment, which appears as subsection (2)(b) of the new clause, refers to spiritual counselling or assistance. This has given the Church of England serious cause for concern. I stress that it also affects other Christian churches and religions other than Christianity.

As I understand it, agreement has been reached with the Secretary of State and the police authorities that surveillance under the Bill should not breach the seal of the confessional and that that would be reflected in the code of practice. However, the Church of England and representatives of the Free Churches have pointed out that very much the same considerations apply to other cases where a person is receiving spiritual counselling from a priest or minister, even though that does not amount to the sacrament of confession in the strict sense.

Within the Church of England less use is made of the confessional than within the Roman Catholic Church and spiritual counselling is widely used. The same is true of the Free Churches. The Government were therefore asked to deal with cases of spiritual counselling in the code of practice along similar lines to the seal of the confessional in the narrow sense. We appreciate that the precise wording would need to be considered very carefully. We also appreciate that "spiritual counselling or assistance" is a very broad expression and that some cases which fall within it may qualify for a different degree of protection from surveillance than other cases.

The Minister has already referred to the Police and Criminal Evidence Act 1984. Under that Act, the police cannot require documentary material about spiritual counselling sessions to be handed over. With regard to the Bill, the Churches are deeply concerned about the possibility of spiritual counselling being subject to surveillance. What has been done in response to that concern, although it was not what the Churches asked for, is to include subsection(2)(b) in the Bill. That does not meet the Churches' concern because it merely requires surveillance which may yield information relating to spiritual counselling or assistance to be approved by a commissioner, unless the case is urgent. The commissioner cannot refuse approval just because the case involves spiritual counselling if the basic requirements for surveillance under the Bill are satisfied.

We are concerned also about the drafting of the provision which has been lifted from a different context in other legislation and which we believe is not appropriate, as it stands, in the Bill. For instance, it refers to information relating to spiritual counselling and not what is actually said during the spiritual counselling session. However, our chief concern is that it could be argued that the provision in the amendment is a clear indication that surveillance affecting matters covered by spiritual counselling can take place under the Bill,

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and thus that a provision in the code of practice of the kind that we are seeking would be inconsistent with what is provided in the amendment.

If that is the case, I have to express my opposition to subsection (2)(b). The assurance for which the Churches are looking is that the appearance in the amendment of that provision does not close off the option which we are seeking through the code of practice. I hope that the Minister will be able to give that assurance.

6 p.m.

Lord Elton: My Lords, I await my noble friend's reply to that penetrating criticism with interest. I hope that it is as reassuring as I expect. I should like to join in the thanks that have been expressed to my noble friend the Minister not just for her explanation of what is involved here but for the way in which the Government have cleverly arrived at a satisfactory solution to almost all the concerns that have been expressed. In particular, given that individual judges while serving are not the proper source of the authority which is needed for a commissioner, the combination of having them recruited from among those who have held high judicial authority and, if it is not possible to take the appointment completely out of politics, then to restrict the grounds for which dismissal may take place as narrowly as has been done in the Bill, is a welcome and satisfactory solution. The only improvement beyond that for which one could ask would be an extension of an appointment beyond three years. But I, for one, am satisfied with what has been done.

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