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Security Service Bill

4.11 p.m.

Report received.

Lord McIntosh of Haringey moved Amendment No. 1:


Before Clause 1, insert the following new clause--

General principles

(". The Security Service, in exercising its functions under or in consequence of this Act, shall have regard to the following general principles--
(a) the rule of law is paramount;
(b) the means of investigation must be proportionate to the gravity of the threat;
(c) the more intrusive the technique, the higher the authority should be to authorise its use; and
(d) except in emergencies, less intrusive techniques must be preferred to more intrusive ones.").

The noble Lord said: My Lords, in speaking to this Bill, both at Second Reading and in Committee, I emphasised the support of the Opposition for the general principle behind the Prime Minister's statement at the Conservative Party Conference, that he sought to put on a more established basis, a legal basis, the role of the law enforcement agencies, including the police and the Security Service.

This Bill is the first part of that programme of objectives which the Prime Minister set out. As I said at Committee stage, it is in some ways the most difficult part, not necessarily in drafting terms, but because this is the part which extends the responsibilities of the Security Service, although we have not yet seen the other parts of the Prime Minister's package which are to provide a statutory basis for law enforcement agencies. Therefore, because this part comes before Parliament earlier than the rest of the package I thought it appropriate, as has happened in other legislation in this Session, to seek to add to the Bill a statement of general principle underlying this new role for the Security Service. I have taken that statement of general principle from Canada.

Noble Lords who follows these things will be aware that in the 1970s there was a series of scandals about the unauthorised activities of the Royal Canadian Mounted Police. An inquiry was set up under Justice McDonald, which led to a Royal Commission in 1981, which

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produced a report called Freedom and Security under the Law. I believe, having read unfortunately only extracts from that report, it is a very valuable statement of the principles on which the work of the police and the security services in a free society should operate. In the Royal Commission's report the general principles are set out in this form: the Security Service,


    "shall have regard to the following general principles--


    (a) the rule of law is paramount;


    (b) the means of investigation must be proportionate to the gravity of the threat;


    (c) the more intrusive the technique, the higher the authority should be to authorise its use; and


    (d) except in emergencies, less intrusive techniques must be preferred to more intrusive ones".

These are Canadian words and they may not fit immaculately into English legislative speak. I believe that they will have a resonance to your Lordships, and that you will feel, reading them, that they express the basic principles which we all feel about the role of law enforcement agencies. I believe that they follow and point up the concerns which the Prime Minister expressed in his speech, and which underlie the purposes of this particular piece of legislation.

As a result of the Royal Commission, Canada set up the Canadian Security Intelligence Service, which took over the functions of the Royal Canadian Mounted Police for internal security. It is headed by a director-general, but it also has an inspector-general who has the responsibility of reporting to Parliament and making judgments about the propriety of the activities of the Canadian Security Intelligence Service. Under the legislation which governs the work of that service, an application for a warrant, of a kind we are considering in Clause 2 of this Bill, has to be approved by the solicitor-general and has to be made to a judge in writing. We shall come to that issue when we consider later amendments.

I believe the Canadians have something to teach us in this matter. Having had difficulties in the 1970s, they have shown a responsible approach to the whole issue of the statutory basis of the work of law enforcement agencies. As I understand it, their reforms have been successful; and they have been successful, at least in part, because they are based on the general principles set out in Amendment No. 1.

The House has agreed, as recently as in its consideration of the Family Law Bill, that a statement of general principle can be, under certain circumstances, a valued addition to legislation. I believe that this reflects what the Prime Minister intended from this legislative programme. I commend the amendment to the House.

4.15 p.m.

Lord Renton: My Lords, I do not doubt the good intentions of the noble Lord, Lord McIntosh, in moving this amendment, but frankly I do not think it is suitable for legislation. It states opinions and does not enact law with any precision which would be considered binding on those who have to observe the law and, indeed, upon

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the courts. Different judges would take different views as to what should be the application of some of these phrases.

Perhaps I may go through them. First, the amendment says:


    "The Security Service, in exercising its functions under or in consequence of this Act, shall have regard to the following general principles--


    (a) the rule of law is paramount".

That is merely a statement of opinion of the obvious. It is merely a repetition of a well-known constitutional principle, but it does not get us anywhere in relation to this Bill. Secondly,


    "(b) the means of investigation must be proportionate to the gravity of the threat".

That would be good advice to those who will be responsible for administering the law when this Bill is passed, but it is a matter of opinion in every case. If this point were to be brought before juries, juries' decisions would vary enormously on the same set of facts.

Thirdly, there is another statement of opinion:


    "(c) the more intrusive the technique, the higher the authority should be to authorise its use".

There is no listing of the techniques, but I am glad there is not because I do not think we should go into that sort of detail. The amendment uses the words,


    "the higher the authority should be to authorise its use".

I do not think there will be a multiplicity of authorities authorising use here. It just will not be so. Finally, it says:


    "(d) except in emergencies, less intrusive techniques must be preferred to more intrusive ones".

There again, it is good guidance to give to the Security Service in the years to come, but to try to tie them down in law to a statement of this kind does not seem to me to be a way to legislate. I hope the Government and your Lordships will not accept this amendment.

Lord Rodgers of Quarry Bank: My Lords, when I first saw the amendment on the Marshalled List I was not at all clear as to its purpose. However, I listened carefully to what the noble Lord, Lord McIntosh, said when moving it, and to the remarks made by the noble Lord, Lord Renton. On reflection, I believe that there is a great deal to be said for the proposed new clause. I certainly understand the reason why the noble Lord Lord McIntosh, brought it forward. I believe that I was the only Member of your Lordships' House who, in a debate on the humble Address, expressed some hesitations about the Bill which was then foreshadowed. I expressed those hesitations again on Second Reading and, indeed, in Committee.

I recognise what the noble Lord, Lord McIntosh, said--the Minister has reminded us of it from time to time, quite rightly--namely, that the Bill has in its purpose all-party support. However, the longer we have discussed it the more concerned I have become that, in pursuing a good cause--by which cause I mean dealing with organised crime--we may be making constitutional changes which, although not apparently significant

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today, may turn out to be the thin end of the wedge over a period of time in terms of many of the freedoms that we take for granted today.

I understand the points contained in the proposed new clause. They are controversial only to a very minor degree. They might, therefore, seem too obvious to require a particular statement here. However, for the very reason that I mentioned, if there is no place for such a clause in the Bill and no endorsement of those sentiments, the difficulties that we have in amending the legislation will stand on record as a failure of your Lordships' House.

Although we shall return to some of these issues later, I remind your Lordships that we have not found it possible to define organised crime in the way foreshadowed and anticipated by the remarks made by the Prime Minister last autumn. We have found it difficult to find a way to deal with an adequate complaints procedure, although we shall return to the issue later. But, perhaps the most important question of all--and, again, we shall discuss it soon--involves the contents of Clause 2 which the noble Lord, Lord McIntosh, ensured were debated in Committee.

Bearing in mind the difficulties that we have experienced thus far in making progress with the changes which many noble Lords believe are desirable, I believe that there is much merit in the proposed new clause. Whatever the course the noble Lord, Lord McIntosh, chooses to take as regards whether or not to press the matter to a Division, I hope that the Minister will find it possible to endorse the principles enshrined in the proposed new clause.


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