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Baroness Kennedy of The Shaws: I thank the Minister for her description of the powers and how they are exercised. When I said that the whole of the metropolitan area of London had been subject to a rolling authorisation by the Home Secretary for the use of these extended powers, and that that had been the case for two years, I understood that that had been indicated to the High Court when a challenge was made in the arms fair case. If that is wrong, I would be grateful to receive information from the Minister on how it is so. It is the position of Liberty.
Baroness Scotland of Asthal: I make it clear that I am not, and will not be, in a position to give the noble Baroness any clarification on that at all. I am not in a position to tell her whether she is right or she is wrong. Bearing in mind the sensitivity of this issue, the noble Baroness should recognise the position in which the Government find themselves. If she were right, we
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would not be able to confirm it; if she were absolutely, fundamentally and irritatingly wrong, I would not be able to say anything about it either.
Baroness Kennedy of The Shaws: The organisation Liberty has presented that argument publicly. While I of course understand that the Government are bound by concerns about security, it is a matter of public concern if rolling powers are operating in that way. I make it clear that I am not against the existence of powers under Section 44. It is appropriate for the police to have emergency powers that can be used in terrorism-related circumstances. The whole purpose of Section 44 was to provide for the kind of emergency where it could be said that the police need not even have suspicion. Perhaps he came in late during the argument, but my noble friend Lord Foulkes of Cumnock is wrong: if the police suspect someone of terrorism, they have powers to act. That is not required under Section 44, which does not even require reasonable suspicion, but gives powers just to stop and search without there being any standard of the kind that normally applies in stop and search powers.
While it is accepted that these kinds of powers should exist, it is being argued that they should be carefully constrained and operate within a much tighter regime than currently exists. All that one is saying to the Government is that, in bringing in legislation, sometimes you have the opportunity to reflect on its operation over a considerable period. Here, it is two years. If it looks as though it is being used in a way that may run counter to the purposes for which it was put in place, and may have the negative effect of interfering with police intelligence-gathering, as referred to by the Metropolitan Police Authority, that is a serious consequence, and I am sure the Government are mindful of it.
It is precisely because of our concerns about the way the section is used by the police that we are raising the possibility of constraining this section. I say to the noble Lord, Lord Kingsland, that if the police have the kind of suspicion he describesa police officer's sixth sense that something is not quite right in a particular set of circumstancesthere are powers under Section 43 of the Terrorism Act 2000 that allow them to act. We are concerned about this special power under Section 44 that does not require any reasonable suspicion at all.
Lord Harris of Haringey: My apologies for interrupting the noble Baroness. I am grateful to her, and I apologise for missing her opening speech. With regard to the argument she is now developing, I want to clarify that the point of Section 44 powers is to make a target more difficult. If it is apparent that one person in five is being stopped by the police on an entirely random basis, that makes it more difficult for terrorists to act under those circumstances. Surely providing the police with considerable flexibility to act in that sort of way without there being suspicion about
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any of the individuals being stopped, while making a target more difficult, is desirable. As I understand it, that was one of the objectives of giving the police Section 44 powers.
Baroness Kennedy of The Shaws: I am sorry my noble friend was not present when I made the argument in the first instance, because that is precisely my argument. It is absolutely right, when there is a set of circumstances where you want special powerswhere there is intelligence, or a visit by a state leader, or a political event taking placethat you do not have to have suspicion, but would just stop every fifth person. Or you could stop and search everyone, and we would all, as citizens, agree to that happening. One does not want powers to be directed against someone because they wear a political t-shirt that someone does not like, or against minority communities who may see them as racially discriminatory. One could tighten Section 44 in a way that would prevent that kind of use of the power, which interferes with the "hearts and minds" argument that is so essential to intelligence-gathering. The Committee may have the opportunity afterwards to see the Hansard report of this, because that is the argument I am making.
These powers are necessary, but it is how they are exercised that is so important. One is seeking to create a tighter regime and some parliamentary involvement by allowing Parliament to be aware of the existence of notices. I hope that we may reflect on this in the period in between. The drafting in this amendment may be inappropriate, and maybe the Government themselves can come up with some better formulation. What is needed here is a much tighter constraint on the way the section is currently being used.
Intelligence is key to defeating terrorism. Of course that cannot be done by laws alone, however strong and severe they might be. Indeed, certain measures may at times be counter-productive. I hope that what is being suggested here is a sensible, measured and practical attempt to constrain the way in which these powers have been used over the past two years. It should not be too broadly drafted, but should operate within a much more limited time frame. I hope that the Government will take time to think again on the suggestions that the amendment contains, but I beg leave to withdraw it.
The noble Lord said: I shall speak to Amendment No. 133A with this amendment. These are probing amendments. Clause 30(2) amends the Intelligence Services Act 1994 to enable the Secretary of State, under certain circumstances, to delegate his power to issue warrants to "senior officials" under that Act. The warrants authorise the doing of some quite startling thingscapable, if bungled, of causing a good deal of international and national uproarso the term "senior" is important.
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"Subject to subsection (3), the persons designated for the purposes of this Chapter are the individuals holding such offices, ranks or positions with relevant public authorities as are prescribed for the purposes of this subsection by an order made by the Secretary of State".
What I am after are the criteria of seniority, in wisdom and responsibility, of the people named in it. The legislation which I have referred to suggests that what is nominated is not a person but a positionthe town clerk or the head of intelligence for the time being, as it were. Since these are important decisions, it is important that we should know that they are to be carried out by fit people. I beg to move.
Baroness Scotland of Asthal: I thank the noble Lord, Lord Elton, for tabling these amendments, which enable me to go into a little detail in explaining Clause 30, which amends the Intelligence Services Act 1994. I will bear in mind the real point of the noble Lord's amendment, which is how we define seniority.
To understand why that fits, let me say that the intelligence and security services, as the noble Lord knows, work tirelessly to disrupt and interrupt terrorist activity in the United Kingdom and abroad. To do so, we need them to be flexible and adaptable, capable of facing an ever-changing challenge posed by the international terrorists whose purpose is to destroy our very way of life. As the noble Lord, Lord Elton, pointed out, the Intelligence Services Act 1994 permits the authorisation of certain acts that would otherwise be contrary to British law. Section 7 relates to the authorisation of actions abroad, while Section 5 relates to the authorisation of actions within the United Kingdom. The issue of an authorisation or warrant, enabling the carrying out of such actions, is under the authority of the Secretary of State.
A senior official is anyone holding a position in the senior Civil Service. That is, using old-fashioned language, an assistant secretary, also known as a grade 5. Someone becomes a senior official once they are, in current parlance, a grade 5.
It is clearly of the utmost importance that the intelligence and security services are able to disrupt the activity of terrorist groups. Clause 30 streamlines the warranty to enable greater flexibility to respond to the threats faced from international terrorism. For that reason we have made it clear that a senior official would need to be involved in any such process. I do not know whether that answers the noble Lord's question and whether he wants me to continue and delight the Committee with all the other things that I could say in relation to this amendment, or perhaps that is enough.
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