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Baroness Park of Monmouth: My Lords, I hesitate to intervene, especially as I have not, unfortunately, recently seen the text of the original Act on the functions of the Security Service. However, although I entirely respect the motives of the noble Lord, Lord McIntosh, in putting forward such views, I should be extremely surprised if the Security Service does not in fact already operate in the way suggested. Therefore, the provision seems a little unnecessary. Indeed, no sensible intelligence officer would do something complicated and dangerous if he could achieve the same admirable result by doing something simple and lawful.

As I believe my noble friend Lord Renton said, there is, in practice, only one authority--namely, the Secretary of State, or so it has always been--as regards the granting of warrants and all those acts which have to be approved because they raise problems of danger and law. It is slightly insulting to the service--I do not believe that it is intended to be so--to suggest that it does not operate in that way. In the last legislation on the service, I assume that it was made pretty watertight that some matters had to be referred upwards and others had not.

There is, of course, a long history of case law in both services as regards what one refers on and when one should do so. But I repeat: no sensible intelligence officer would do something more intrusive if he could do something less intrusive. The Canadian case is not really relevant; indeed, there were many other problems

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involved. It happened long ago and it is too difficult to go into the details. There was a need for tightening up quite a lot of screws in that case. However, I do not believe that that is necessary as regards the legislation now before us. I should regret seeing such a provision becoming, perhaps, a rod with which to beat the service at a future stage in some difficult legislative battle.

I feel real anxiety about the lack of certainty and clarity which still exists about what will happen with the authority and with the police. I look forward to those points becoming much clearer. However, although the proposed new clause is entirely honourable, I believe it to be unnecessary.

The Minister of State, Home Office (Baroness Blatch): My Lords, I do not believe that there is a very real difference of opinion here. Certainly that does not appear to be the case from the remarks made by my noble friends Lady Park and Lord Renton. The noble Lord's amendment advances a series of principles which should guide the work of the Security Service under its new function. I am happy to be able to say that the work of the Security Service is already guided by those principles through a combination of existing legislative provisions and internal mechanisms. Indeed, three of the four principles in the amendment are set out in the second edition of the Security Service booklet, which was published earlier this year, as fundamental principles governing the service's work. I hope, therefore, that your Lordships will agree that the amendment is unnecessary.

First, the amendment restates the primacy of the rule of law. In the course of our discussions on the Bill, I have already given the assurance that individual members of the Security Service are subject to the law--both criminal and civil--but I am happy to restate that assurance now. Of course the rule of law is paramount, that is absolutely clear. This is certainly one of the fundamental principles to which the Security Service adheres.

Secondly, the amendment will impose a test of proportionality so that the most intrusive techniques can be used only when the threat is suitably serious. As a related requirement, less intrusive techniques should be preferred to more serious ones. Underpinning both those principles is the desire to ensure that the most intrusive investigative techniques are not used inappropriately or unnecessarily. Again, that is a fundamental principle for the Security Service and one which the Government fully endorse. Hence, the legislation governing the most intrusive techniques already makes specific provision to that effect.

Section 2(2) of the Interception of Communications Act 1985 prevents the Secretary of State from issuing warrants authorising interception unless,


    "he considers that the warrant is necessary",
for the stated statutory purposes which include,


    "preventing or detecting serious crime".
In defining the word "necessary", the Act goes on to say that the Secretary of State must consider,


    "whether the information which it is considered necessary to acquire could reasonably be acquired by other means".

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There is a similar provision in the Intelligence Service Act 1994, governing the issue of warrants authorising the entry on, or interference with, property. Section 5(2) requires the Secretary of State to be satisfied that the action is likely to be of substantial value in assisting the Security Service to pursue its statutory functions and that the objective of the action,


    "cannot reasonably be achieved by other means".
In other words, for the two most intrusive means of investigation there is already a statutory requirement for them to be used only as a last resort.

The fact that that "last resort" test requires the Secretary of State to be satisfied that other, less intrusive, techniques could not be used, demonstrates the emphasis which is placed in the legislation on restricting the authorisation of the most intrusive techniques to a suitably high authority. For both types of warrant, the personal authorisation of the Secretary of State is required. In both cases, the Secretary of State's exercise of his power to issue warrants is overseen by a senior member of the judiciary in the form of the relevant commissioner. Once again, I would suggest that the existing legislation meets the concern underpinning the amendment's wish to see a higher authority authorising more intrusive techniques.

For general methods of investigation which do not require the issue of an interception or property warrant, the actions of the Security Service are under the control of the Director-General of the Security Service. I do not believe that it would be helpful to the service's operational effectiveness if we were to attempt to specify how the Director-General should apply or delegate his authority in relation to general methods of investigation. The principal is very properly covered in the internal mechanisms controlling the service's day-to-day work. The clear exception to this is where techniques are involved which require serious intrusion into the privacy of members of the public. On those occasions the legislation is clear and the safeguards are robust--the personal authorisation of the Secretary of State is required, with oversight from a commissioner. In conclusion, these principles are extremely important--a fact which has been publicly recognised by the Security Service and endorsed by the Government. Where it is sensible to translate those principles into practical legislative safeguards it has already been done. That is why principles (b), (c) and (d) of this amendment are already addressed in the existing legislation. Principle (a), which reminds us that,


    "the rule of law is paramount",
is not specifically addressed in the legislation because, as my noble friend Lord Renton said, it should not be necessary to restate that the rule of law is paramount. There is nothing which could detract from such a clear and fundamental principle. I hope therefore that the amendment will not be pressed.

4.30 p.m.

Lord McIntosh of Haringey: My Lords, I am grateful to the noble Lord, Lord Rodgers, for his support for this amendment. However, the case for the amendment has been most effectively made by those

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noble Lords who have spoken against it. They combined the claim that it is unnecessary with the claim that it might be too restrictive on the members of the Security Service. That confirms all of my fears. The noble Lord, Lord Renton, the noble Baroness, Lady Park, and the Minister all objected to the idea of a statement of general principles in this form. I remind the House that just this afternoon we shall consider Commons amendments to the Family Law Bill. I believe it was the noble Baroness, Lady Young--I am sure she had the support of all noble Lords opposite--who inserted in the Family Law Bill a clause of general principles that,


    "The court and any person, in exercising functions under or in consequence of Parts II and III, shall have regard to the following general principles--


    (a) that the institution of marriage is to be supported".
There are further principles as regards practical steps to save a marriage and as regards dealing with marriages which have irretrievably broken down. So the House has only recently inserted, in a kind of preamble to a Bill, a statement of general principle which is certainly as wide-ranging and as unexceptionable as the repeated declaration of the primacy of the rule of law.

Baroness Blatch: My Lords, I believe that the comparison the noble Lord makes is almost an odious one. As regards recognising the institution of marriage, that can be a subjective judgment on the part of many people. However, to honour the rule of law as paramount should not be a subjective judgment. It is an absolute principle that we would all expect to see honoured by whomever it concerned.

Lord Renton: My Lords, I am a most enthusiastic supporter of general principles rather than going into too much hypothetical detail. But a general principle must be one which is enforceable in law and not merely a statement of opinion or merely a guide to good conduct.


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