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Lord Browne-Wilkinson: I join in the degree of anxiety that has been expressed on Clause 2. I cannot pretend to have my mind round all the ins and outs of the powers currently exercisable in relation to the surveillance of private property, the entry of private property, tapping of telephones connected to British Telecom, tapping of telephones not connected to British Telecom, the long-distance bug, or any of those matters.

In my experience, the present situation is extremely confused. So far as I know there is no statutory authority currently sanctioning the invasion of premises by police to plant bugs. A case is pending in the Judicial Committee of the House of Lords where exactly that point is at issue.

I rise on this occasion because apparently I have either the wrong end of the factual stick or I have the wrong judgment. I believe that what is being proposed in Clause 2 of the Bill is a major constitutional shift. There was a famous case in the eighteenth century called Entick v. Carrington which decided that the Executive could not enter premises, search and remove goods; it was not part of its function or rights. As I read the Bill--I speak subject to correction--what is happening is that as part of the process of introducing

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the security services into the prevention and detection of crime, powers--people accept, albeit reluctantly, that they have to be exercised in that extremely tricky half-light of espionage--are being brought in to be exercised by the security services, not in the context of espionage but of ordinary police duties. That seems a very serious matter. If the police, or any law enforcement officer, are lawfully to enter and search, ever since Entick v. Carrington a search warrant has been required, granted by an independent judge or magistrate.

As I read the Bill--again I ask for information as much as for anything else--under the arrangement in the Bill an officer of the Security Service (the Minister says that he has no executive power but I am not sure what that means) obtains a warrant that is not signed by a judge or a magistrate but by the Home Secretary or someone to whom that power is delegated. That officer can enter, search and remove things from a private house. The policeman with whom he is co-operating can do no such thing. He requires a warrant.

I hope that the Minister will indicate to us that my fears about what is being done under the meritorious concept of seeking to deal with organised crime is not treading on those matters which we have habitually regarded as the Englishman's basic freedom; namely, the safety of his home.

As regards bugging, we are in fairly advanced days. One does not need to get on to the premises. One sets up some gear 100 yards away; windows vibrate and speech is heard. There are very sophisticated arrangements now in place whereby what is going on inside a man's or woman's house is capable of detection from outside.

I hope that this matter will receive careful consideration before the Government confer on the security services wider, different and non-independent powers to invade the privacy of the Englishman's home. It may well be that I have the Bill wrong. I look forward to finding out why my fears are not realities.

5.45 p.m.

Lord Harris of Greenwich: I find myself in substantial agreement with what the noble and learned Lord, Lord Browne-Wilkinson, said. I believe that all of us accept that in the investigation of serious crime intercepts can be of critical importance in a series of cases--blackmail, kidnapping, terrorist offences and so on.

The noble and learned Lord referred to a case before our Appeals Committee. I should not dream of referring to it by name in case that caused displeasure to the noble Baroness, Lady Blatch. This issue will be addressed in the relatively near future. It is a matter of critical importance. Ministers should have no doubt of the constitutional importance and other implications of this matter.

It seems wholly unsatisfactory that we should have one system of arrangements for the Security Service and totally different arrangements for the police, notwithstanding the fact that the Security Service and

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the police will be working together as colleagues in exactly the same operation. I do not see how one can justify that.

I find it a matter of deep regret that on an issue of this kind--I repeat that it has consistently been drawn to the attention of the noble Baroness's department by chief officers of police--this matter is not being addressed adequately within the Bill. I do not see how members of the two organisations, who we assume will be working closely together as colleagues as a result of the passage of the legislation, will have totally different arrangement as regards intercepts.

What can conceivably be the basis of that judgment so far as concerns Ministers?

Lord Knights: Perhaps I may first quote from a report of a Home Affairs Committee in another place on Organised Crime. It was published in July 1995. At paragraph 48 it states:

    "We consider that taken as a whole it"--
that is to say organised crime--

    "is a cause for serious concern. There is no doubt that, while the level of such crime in the UK may be lower than in some other countries, it is nevertheless substantial and probably growing ... We conclude that the Government and the police will need to take effective pre-emptive measures if an irretrievable expansion of organised crime in this country is to be avoided".

The Government have responded to that by saying that the Security Service shall play some part in dealing with that serious matter. If the position is as serious as that, and no one has suggested that it is not, there can be no doubt that there are occasions when clandestine and covert arrangements are essential if the necessary intelligence on which to base further practical operations is to be obtained.

Parliament should recognise that and that we cannot use kid glove measures to meet the dangers which this type of crime presents, not only to society as a whole but to the individual officers involved in it. Only recently it was known that a police officer was killed when seeking to obtain information, in that case not within the premises but while keeping observation outside.

As I understand it, the clause seeks to correct a situation which exists because of the present legislation dealing with the Security Service. Security services under the existing statute can bug premises--and that is what we are talking about--with a warrant from the Secretary of State in the discharge of their responsibilities, but not in furtherance of the responsibility or authority which they have to pass criminal information to the police. Now that they are to be involved in seeking actively to develop criminal intelligence, it follows that they will seek to bug premises.

It may be that today it is not so essential to enter premises in order to bug them and that it can be done from outside. I am not technically minded enough to be able to comment on that, but it would surprise me if the number of occasions on which it is essential to enter premises to bug them is anything more than rare.

Be that as it may, the police do not have such authority at the moment. If any of us is confused, there is a difference. We are not talking about searching

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premises for which search warrants must be obtained from magistrates or courts. We are talking now about bugging referred to in the famous book: Burgling and Bugging Across the Country. In 1984--a long time ago so my memory may not necessarily be accurate--the police were given guidance by the Home Office as to the way in which they should conduct themselves if they were seeking to obtain information in that way. It included not just bugging premises but covering the whole range of covert activities: vision, listening and any other way in which information can be obtained, whether by using binoculars outside the premises or on private land or whatever it is.

The information within those guidelines was and still is helpful. But it leaves one area on which the guidelines give no guidance: the entering of premises without the knowledge of anyone else. Plenty of advice is given as to entering premises with the consent of the owner or occupier, in order to bug the premises to listen to activities or people; but where there is no means of entering the premises with authority, the guidance does not exist. I personally never authorised a police officer to enter premises to bug them unless he had the consent of the owner or occupier. I should be surprised if other chief officers of police had done that on more than a few occasions. It might have been done in dealing with terrorism, but not with ordinary crime. The circular anyway restricts the area of crime in which it would be appropriate to use bugs.

Now that the Security Service has moved in, I believe that there can and will be occasions when it will need and wish to bug premises in a few serious cases without the consent of the people who own them or live there. It follows that if the Security Service is to work with the police, then the police need to have the same authority. I see few occasions when that option will be used, but a chief officer of police would be unwise to authorise any of his officers to conduct such operations without legal authority for doing it. He certainly could not plead a Home Office circular in his defence, if he were brought before a civil court for trespass or some other legal matter. If the Security Service is to come into this area, then bugging must be recognised as being a requirement on rare occasions. I therefore wish to see it included in the Bill.

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