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Lord McNally: My Lords, further to that comment, perhaps the Chief Whip rather than the Minister should respond to those concerns. We are almost now dealing with a House of Lords Bill, so dramatically is the Bill being rewritten as we proceed. I repeat: if ever there was a case for pre-legislative scrutiny, this Bill is it. I hope that in future, when Bills of great technicality are brought before the House, outside expertise will be brought in at an early stage, rather than having to have that expertise brought to bear on the Home Office before concessions are made, as in this case.

I do not wish to appear churlish. Having pressed changes on the Home Office, we do not object to the fact that changes to the Bill are now being made. However, it is now extremely difficult, midway through the Committee stage, to make a judgment on the balance of the Bill. It would be helpful to know how the Report stage will be handled.

I address my next question to either the Minister or the Chief Whip: will we see the code of conduct before Report stage? The rewriting that has been promised as the Committee stage has proceeded and the code of conduct will give us a much more complete picture of the Bill.

To try to legislate both for civil liberties and for one of the most important new 21st century industries in the rather heated atmosphere of July, with all the

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pressures that that entails, and with a Bill which involves considerable secondary legislation and delegated powers, is not the way to do business. It is not just a case of the Opposition opposing this process; there are some sensible lessons to be learned with regard to how we have reached this position and how it should be avoided in the future.

Lord Bassam of Brighton: My Lords, I shall try to deal with the points in turn. I am a great fan of pre-legislative scrutiny. I take to heart the comments that have been made in that regard. It is an important and valid point. I thank both noble Lords who have spoken. However, I ask the rhetorical question: how would they have felt if we had not made any changes? We have moved a long way on the Bill. We said at the outset that we would do precisely that and that this was a listening and a consultative process. We said that we would take on board reasonable criticisms, as far as we could do so, and engage actively with industry interests.

What I can say to both noble Lords is that we are still committed to the timetable of producing by the Report stage the draft codes of practice. We want to be as helpful as we can be in enabling industry interests to have the maximum opportunity to look at those because clearly they have a bearing on future debates. I hope that that clarifies that point.

As to recommittal, that is a question to be considered in the usual way by the usual channels. I am grateful to noble Lords for their contributions. I think that that presages a helpful dialogue over the amendments we have tabled. We will try to give as much advance information on the precise nature of other amendments that are to be brought forward at the Report stage. But, as I have said, this is all about listening. We are trying to listen. We have taken on board many comments and criticisms. We want to improve the quality of this legislation, as we do with all other pieces of legislation.

On Question, Motion agreed to.

House in Committee accordingly.


Clause 25 [Conduct to which Part II applies]:

Lord Bach moved Amendment No. 99A:

    Page 27, line 11, leave out ("For the purposes of this Part surveillance is directed") and insert ("Subject to subsection (5A), surveillance is directed for the purposes of this Part").

The noble Lord said: In moving Amendment No. 99A I should like to speak to government Amendments Nos. 102A, 110 and 137. There are other amendments in this group. If it is acceptable to the Committee I propose to listen to what is said when those amendments are moved, if they are moved, and then reply to them when I speak again.

We have listened closely to the representations that have been made in relation to Parts I and III of the Bill. The Committee will agree that we have tried to meet those concerns where possible and given clear reasons where we think amendments were not acceptable. I am therefore turning, with some relief, to Part II which is,

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we think, genuinely welcomed by everyone. These are important provisions which will safeguard the use of these valuable investigative techniques by law enforcement authorities, by the intelligence services and by many public authorities carrying out statutory enforcement functions.

As part of the development of policy, we have been able to identify all those public authorities currently using covert investigative techniques. The provisions of the Bill will introduce control and national standards for activity which is currently unregulated. They will also ensure that authorisations for action are given only on grounds compatible with the Human Rights Act. That activity is being authorised at the same level across Whitehall and other public sectors and there is effective and independent oversight of the use of these techniques.

After those few introductory words regarding Part II, perhaps I may turn to the government amendments. These amendments generally address a wide range of issues concerning the definitions of surveillance and covert sources. I have already mentioned that a beneficial side effect of this legislation has been to identify all those public authorities carrying out covert surveillance activities. We have tabled an amendment proposing that these authorities be identified in a schedule to the Bill. However, we are still becoming aware of activities on which the Bill will impact. One such activity is the use of covert surveillance by the BBC in order to detect licence evasion.

As currently drafted, it could be argued that this activity is intrusive surveillance. It is covert surveillance involving primarily residential premises, and equipment is deployed outside the premises which produces a picture of the same quality and detail as might be expected to be obtained from a device inside the premises. However, it cannot be said that such activity infringes on a person's privacy in the same way as a bugging device or hidden camera impinges on their privacy. It would not, for example, provide details of that individual's private or family life, except perhaps for his taste in television programmes. All that it would provide would be details of the television programme being watched by a person, the same as is being broadcast into millions of other homes.

We have therefore decided to exclude this specific activity from the definitions of intrusive and directed surveillance. However, this does not mean to say that we do not believe this activity does not constitute some invasion of privacy or that it should not be put on a statutory basis.

The provisions in Clause 44 of the Bill allow the Secretary of State, by order, to add to the types of covert surveillance identified in the Bill. The issue of TV licence evasion detecting equipment is a candidate for an order under this clause. This activity is a rather distinctive type of surveillance that does not fit easily with the existing provisions in Part II of the Bill.

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Bringing forward an order specifying it as a new type of surveillance would be a way of making it subject to statutory controls. I beg to move.

The Chairman of Committees (Lord Boston of Faversham): As Amendment No. 103 is grouped with this amendment, I must point out to the Committee that if that amendment is agreed to I cannot call Amendments Nos. 104 to 106.

Lord Cope of Berkeley: We have two amendments in this group. Perhaps I may say to the Minister that the government amendment brought forward in response to consultation and pressure could almost be covered by the phrase "minor and technical amendments", a phrase used by Mr Charles Clarke about the Bill when it left the Commons. When asked what amendments he expected would be made in the House of Lords he said that some minor and technical amendments might be made. As I say, I think that this amendment just about comes under that description. However, many of the amendments which we shall discuss later do not. As I said a few moments ago, I am glad about the recognition of a need for a rewrite and for that matter the recognition by noble Lords of the importance of the Bill.

Our Amendment No. 102 is grouped with Amendment No. 99A. The amendment draws attention to Clause 25(2)(b), which states:

    "For the purposes of this Part surveillance is directed ... in such a manner as is likely to result in the obtaining of private information about a person (whether or not one specifically identified for the purposes of the investigation or operation)".

We recognise that in picking up private information about one individual who is the suspect--let us call him the probable criminal--other information about those adjacent to him, in his family or whatever, is likely to be collected at the same time, even if it is not directly relevant to the operation being conducted. But that information is not really the information which those carrying out the surveillance should be going for. I think that we should consider that. Furthermore, the clause appears to permit fishing expeditions against people who are not suspected of any crime, terrorism and so on. Therefore, I thought it worth probing what exactly is intended by the words in the amendment.

The Minister mentioned the BBC in connection with licence evasion. We have read in the Sunday Telegraph about how the BBC was involved in covert and intrusive surveillance of a residential home, which led to a programme which has been severely criticised not only by the Sunday Telegraph but also by the police. I do not want to become involved in the rights and wrongs of the actual programme concerned, but it is clear that this was covert, intrusive surveillance by the BBC. There were concealed cameras in residential premises for the exact purpose of filming people within that home. That practice, of course, is by no means unique.

If the Bill is passed in its present form, it would be helpful if we could be told about the future legal position in connection with covert intrusive surveillance for the purposes of collecting private

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information by the BBC or any other news media. However, the main purpose of my remarks is to illustrate the reason why we have tabled Amendment No. 102.

I have also tabled Amendment No. 112A, which has been included in this grouping. At Clause 25(7) the Bill sets out provisions covering a "covert human intelligence source"--more usually known as a "grass". The clause defines such a person and provides for how such a relationship is to be governed. All that is fine. However, my amendment draws attention to the kind of circumstance where someone discloses information that he has obtained in a similar fashion, but has done so,

    "to avoid the commission of a criminal offence by another person under any other enactment".

We are not discussing a person established as a grass by the police, but rather a person who decides to grass on someone else in order to avoid the commission of an offence. The amendment seeks to explore the exact position of such a person. Clearly, these people can be of great value to the police and no one would wish to discourage them or place legal impediments in their way. I hope that the Bill does not do that, but I thought it best to inquire about the effects of the Bill while we are debating it in Committee.

3.30 p.m.

Lord McNally: Following on a point made by the noble Lord, Lord Cope, in the past I have worked, in a purely voluntary capacity, with the Alliance Against Counterfeiting and Copyright Theft, a body of commercial organisations that uses various surveillance techniques to track down those involved in offences of counterfeiting and breach of copyright on CDs and so forth. That body is concerned that it might be caught within the ambit of the Bill. It may be that the Minister has a ready response on this point. If not, the issue may need to be brought back on Report in the form of a probing amendment.

Rather like the example given by the Minister of the television detector van, concern has been growing that other activities that were previously thought of as proper and legitimate might now be "hoovered up" by the powers contained in the Bill.

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