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Earl Attlee: My Lords, I am grateful to the Minister for giving way. He has been extremely informative. However, will he kindly respond to my question in relation to permanent staff instructors? It is particularly important to the background policy of the TA.

Lord Gilbert: My Lords, I did not come armed with figures in regard to permanent staff instructors. I assure the noble Earl that I shall write to him on the subject as soon as I can.

I have probably trespassed on your Lordships' time long enough. This has been one of the most instructive debates that we have had in the short time that I have been in your Lordships' House. I want to respond to one remark of my noble friend Lord Kennet. I do not agree with him that the Ministry of Defence is not able to protect itself against a hacker's attack. I have reason to believe that we have managed to isolate ourselves to such a degree that it would not be possible for any amateur hacker to obtain entry to our central systems in a way that it is apparently possible in the Pentagon.

There are other systems vital to our national defence, not necessarily in the Ministry of Defence, that could be vulnerable. As my noble friend was pointing out, one of the difficulties is identifying an aggressor or even knowing that there has been an aggressor in the microseconds or nanoseconds in which an attack takes place. We must recognise that the physical security of our IT installations is just as important as the electronic security. I say that to indicate that Her Majesty's Government are seized of the types of threat that may face this country in the future.

I do not advance the proposition that we have solutions, let alone defences in place for all the threats that may be coming down the pike towards us. However, we are seized of the fact that we are living in

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a technologically fast-moving environment and we are determined to see the defence of the country being put on as firm a basis as possible in the light of the new threats. No country has the answer to them. I am sure that this Government, along with our allies--particularly our American allies--will invest considerable resources in this area.

On that point I agree with the noble and gallant Lord, Lord Carver, about the importance of keeping up interoperability with our American friends. It will cost us a great deal of money to do so and that is something that we shall have to consider in the years ahead. I thank your Lordships for your attention.

On Question, Motion agreed to.

Police Act 1997 (Authorisation of Action in Respect of Property) (Code of Practice) Order 1998

Police Act 1997 (Notification of Authorisations etc.) Order 1998

8.55 p.m.

Lord Williams of Mostyn rose to move, That the draft orders laid before the House on 19th November be approved [1st Report from the Joint Committee].

The noble Lord said: My Lords, with the leave of the House I beg to move the Motions standing in my name on the Order Paper en bloc.

Part III of the Police Act gives the police, the National Crime Squad, the National Criminal Intelligence Service and Customs & Excise a firm statutory base for their intrusive surveillance operations. These involve entry on or interference with property or wireless telegraphy and that, Parliament has decided, is an essential weapon in the fight against serious crime. The decisions to authorise these sensitive but extremely important operations will continue to be made by chief officers of police, the directors general of the National Crime Squad or NCIS and designated senior Customs officers. But the public interest will be safeguarded by independent oversight in the form of commissioners who are to be serving or former High Court judges.

We had a vigorous debate in this Chamber about these provisions and, significantly because of that, the draft legislation was changed and measures introduced providing quasi-judicial oversight of this process. An Office of Surveillance Commissioners has been established and a computer database developed to support its work. The Prime Minister appointed Sir Andrew Leggatt as Chief Surveillance Commissioner in July and recently announced the appointment of six Surveillance Commissioners-- Sir Christopher Staughton, Sir Michael Hutchison and Sir Charles McCullough for England and Wales, Lord Bonomy and Lord Davidson in Scotland and Sir John MacDermott in Northern Ireland. They will be responsible for scrutinising all notifications of authorisations and for giving their prior approval, except

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in cases of urgency, to authorisations involving the intrusion of dwellings, hotel bedrooms and offices as well as intrusions likely to involve confidential information of various kinds. They will have the power to quash or cancel authorisations which they feel have been improperly given and to order the destruction of records (other than those required for pending proceedings) and the payment of compensation. They will also be responsible for investigating complaints.

The two draft orders therefore represent the final steps in the implementation process. One order relates to the code of practice which will underpin these provisions and the other to the information which must be provided to commissioners on notification of an authorisation, its renewal or cancellation. We had extensive public consultation and considered the responses carefully.

The second draft order gives details of the information which must be provided, as I indicated, with a notification of authorisation, renewal or cancellation of an authorisation. A notification of an authorisation given by an authorising officer--that is, a chief constable or equivalent--must record whether it is a case for which prior approval is required; if it is a case which would otherwise require approval but in which intrusive surveillance has started because of urgency, the grounds on which the case is believed to be urgent; how the authorisation criteria have been met--for example, how the case fits within the definition of serious crime and why the purpose which the action seeks to achieve cannot reasonably be achieved by other means; the identity or identities, where known, of those to be targeted; the property against which surveillance is to take place; the nature of the surveillance authorised and the reason why; whether the intrusive surveillance is considered likely to lead to collateral intrusion on or interference with persons other than the person being targeted by the authorisation; and whether or not it will be necessary to retrieve any equipment used in the surveillance.

The notification of renewal must, in addition, record whether this is the first renewal or every occasion on which the authorisation has been renewed previously; every respect in which the information in the previous authorisation has changed; why it is necessary to continue; the content and value to the investigation of the product so far obtained; the results of periodic reviews carried out by the authorising officer; and an estimate of the length of time the authorisation will continue to be necessary. Any cancellation of an authorisation must record the time and date when the instruction was given to cease surveillance; the reason why; the outcome of the investigation and the nature of any criminal proceedings contemplated; and the arrangements for the storage of material obtained as a result of the surveillance, for its review and destruction when it is no longer of use and for the immediate destruction of unrelated material.

These provisions are welcomed by chief officers. They do not see them as hampering their work or as an additional unreasonable administrative burden. They are very positive about the provisions which they believe will help satisfy the public about the accountability of their decisions. They understand and fully appreciate

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that any decision they take has to be fully justified to a commissioner or, should the surveillance result in a criminal prosecution, to a court. I commend the orders to your Lordships.

Moved, That the draft orders laid before the House on 19th November be approved. [1st Report from the Joint Committee].--(Lord Williams of Mostyn.)

Viscount Astor: My Lords, we welcome the two Motions. The orders take forward our policy which emanated from the Police Act 1997, part of which the noble Lord, Lord Williams, supported when in opposition.

I have questions on three brief points. First, there are to be six surveillance commissioners. I wonder whether that is enough. Have the Government considered how many cases they will have to look after? Will the commissioners be spread geographically? Will the Government review the number?

Secondly, I note that the annual report will be made to the Prime Minister by the Chief Commissioner. That is provided in Section 3(5) on page 15 of the code. I wonder why it is to be made to the Prime Minister and not to the Home Secretary. If the report is to be on the operation of the whole system, and not just on the detail, I wonder whether that report will be laid before Parliament.

Thirdly, I presume that the whole policy will be kept under review, but I wonder whether there is a plan for the Home Office to conduct an annual review of this new policy and therefore whether a report will be made to Parliament.

Lord McNally: My Lords, when the Home Secretary had the courtesy to send me the code of practice, he wrote:

    "I have sought to achieve a balance between the operational needs of law enforcement and, at the same time, ensuring safeguards to protect members of the public from unnecessary invasions of their privacy".
We accept that approach to the orders.

Nevertheless, from these Benches, we make no apology for emphasising the need to take care over civil liberties. That does not mean that we doubt the civil liberty credentials of Ministers any more than we accept the criticism that we may be soft on crime. The point is that when giving power to police authorities, such as this, it is very necessary for Parliament to be aware of threats to civil liberties. That is why, from these Benches, we were extremely vigorous in expressing our concerns during the passage of the Bill.

We have considered the outcome of the consultation. In the main, the Government have listened and have made substantial changes, which we welcome. We believe that the consultation process and the pressure for consultation was worthwhile. It produced some good results. My brief lists some 16 improvements to the code but, as I note the Sudanese team straining at the leash, I shall not detail them now. However, I think that the Minister will be proud to note that we have listed at least 16 improvements resulting from the consultation.

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There are still problems about a clear definition of "urgency". There is a continuing problem about targeting property where the consent of the owner has been obtained, but where the tenant is the target. In another place my right honourable friend, Mr. Alan Beith, suggested that although the approval procedure is not formally required if a property owner has given permission, the police could still use the procedure anyway. That would not only improve protection for the tenant, but would also benefit the police operationally. We put that forward, as did my right honourable friend in another place, as a constructive suggestion about the codes.

I am sure that the Minister will also be aware that Justice has expressed disappointment at the code's lack of transparency. Justice has urged that the internal review process should be rigorous--that is something about which the Minister has just assured us--and that the range of information to be included on authorisation and notification forms should be broadened.

Within those terms, we see that Ministers have listened and tried to improve the provisions. We say both to them and to the police authorities which will have to use the powers that we understand the operational need for them. We hope that they will understand our continuing surveillance of how they use them in terms of civil liberties.

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