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Lord Renton: My Lords, before my noble friend sits down, would she care to add that there is a further safeguard which I did not hear her mention; namely, that the Secretary of State is answerable to Parliament for his decisions in such matters as this as in other matters, and can be questioned about them in Parliament?

Baroness Blatch: My Lords, I can give an absolute and unequivocal answer to that. Of course that is right. Not only that, it was this Government who put all of that on a statutory footing and thus opened up this whole area of activity. It is important that we balance how the intelligence services work, and will work in future in support of the police with the openness, as far as is practicable, of full accountability to Parliament.

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Lord Browne-Wilkinson: My Lords, before the Minister sits down, I am still not clear, having now asked twice, whether the Government accept that this Bill involves constitutional change, but say that expediency justifies it, or whether the Government say that there is no constitutional change here. It is an important point.

Baroness Blatch: My Lords, it is indeed an important point. The powers of the security services are not being extended constitutionally, or in any other way. It is a new area of activity to which all the existing systems will be applied. The Home Secretary will give his authorisation to warrants which will incorporate the new function that will be given to the security services under the Bill.

Lord Harris of Greenwich: My Lords, I wonder whether the Minister will deal with a point that I raised, which is the continuing concern of the police service about the different treatment accorded it as compared with the Security Service as a result of the passage of this legislation. What precisely do the Government propose to do to deal with those concerns?

Baroness Blatch: My Lords, I have to be repetitious in my answer to the noble Lord because I have answered the question, I think, more than once. The Government intend to legislate--they have made that clear--at an early opportunity. Even given the timetable that has been mentioned by the noble Lord, the Government are continuing the preparatory work for that legislation. We made it clear on Second Reading and in Committee that the Government see the Bill as a piece of free-standing legislation which will not preclude further legislation to deal with matters concerning the police.

Lord McIntosh of Haringey: My Lords, when we first discussed this clause, I set out three objectives for our consideration of Clause 2. The first was that there should be congruity between the warrant powers of the police and those of the security services when they are, in effect, doing the same thing: when they are working together under the functions as described in Clause 1.

It is acknowledged, and I have to acknowledge, that that will not be achieved by anything we do during the consideration of the Bill. As the Minister has just said, that will have to be done in a broader Bill which will be introduced at the earliest opportunity. So, I give up on that one! There is nothing that can be done.

The second was to seek an assurance that there will be no tacit extension in the Bill--nothing is said on the face of the Bill--of bugging powers for anyone; in other words, no one, as a result of the Bill, will have greater power than they now have. That cannot be achieved. There will have to be legislation to set out more clearly than the legislation does at the moment the extent of the warrant power of the police and of the security services.

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However, before we leave that point, I must remind the House that the noble and learned Lord, Lord Browne-Wilkinson, has now asked three times for an answer to the question as to whether there are constitutional implications. He explained clearly that he meant the constitutional implications of the extension to the Executive of the power to invade the privacy of British people in their own homes. He did not receive an answer. The conclusion must be drawn from that that there is indeed an extension of the powers of the Executive, advising the Home Secretary on what can be done by the security services, acting in support of the police.

Our third concern was that there should be, as there is now for property warrants by the police, judicial rather than Executive authorisation. Again, there has been no adequate answer to the questions posed or the issues raised. Some of the debate has, I think, been based on a severe misunderstanding of what Clause 1 says.

The noble Lord, Lord Knights, said that the security services should not have to make decisions as to whether they are dealing with one kind of case or another. Clause 1 makes it absolutely clear that when they are acting in support of the police in that way they are doing so under the conditions of Clause 1; they are acting under authority which is expressly given; and there should and can be no confusion whatever as to under what authority they are acting.

If the Minister then says, as she did, that there is a blurring of functions between the two, and the actions can be initiated under a single authority but can go back to another authority, then she casts doubt on the effectiveness of Clause 1 in drawing the distinction between the new functions of the security services and the original functions. That would lead me, if it were true, to worry even more about the separation of powers which is provided for in Clause 1.

The Minister referred to the role of the judiciary and doubted whether members of the judiciary were the right people to deal with these covert operations. Plenty of police operations are covert. The investigation of serious crime has always been covert. No one does this, if they can avoid it, under the glare of publicity. I cannot tell whether the Minister is seriously suggesting that there is something different about the serious crime which will be investigated with the collaboration of the security services, or whether she is saying that the judiciary is not fit to deal with covert operations of this kind.

I remind the House that the judiciary has historically been involved in covert operations. The judiciary has the responsibility, for example, of examining all papers, even concerning national security, which are given immune certificates by Ministers. We do not need the Scott Report to remind us of that. It was the judge who had to decide about the applicability of the evidence in the Matrix Churchill case. There have been many cases in the past. There is no doubt that the judiciary is privy to the secrets of state and has been so on many occasions. The judiciary is certainly capable of dealing with individual issues as to whether a warrant of this

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kind is appropriate. That does not mean, to use the Minister's words, that the judiciary would be involved in the covert development of operations. The judiciary is not directing or involved in operations by making a decision in accordance with law as to whether a particular warrant should be granted. It is an individual judicial decision; it is not a policy decision as to the direction of operations.

None of the answers that have been given convinces me that the Government have truly appreciated the fundamental points which were raised by the noble and learned Lord, Lord Browne-Wilkinson. The extension of bugging powers, the extension of these warrants, from the judiciary to the Home Secretary--to the Secretary of State--is a fundamental change, as the noble and learned Lord rightly pointed out.

Baroness Blatch: My Lords, I rise with the leave of the House to say that I am accused of being deliberately evasive to the noble and learned Lord, Lord Browne-Wilkinson. I referred not to an extension of powers but to adding a new function and applying the existing powers to that new function. If the noble and learned Lord is talking about domestic properties, perhaps I may point out that the Security Service already has and is able to exercise property warrant powers if it is in the national security interest.

Lord Browne-Wilkinson: My Lords, if the Minister looks at Hansard she will see that I said exactly that. What is changed is that in policing activities for the first time in the United Kingdom since Entick v. Carrington in 1757, whatever the date, the Home Secretary and the Executive are taking the power to enter, bug and burgle. I believe that I am right about that. I have checked the matter carefully and I believe that the Minister is agreeing with what I am saying. That is what I see as the constitutional change.

Lord McIntosh of Haringey: My Lords, the record will show that I did not say that the Minister was being deliberately evasive. I said that the noble and learned Lord had asked his question three times and had not received an answer. That is not being deliberately evasive. I am not casting aspersions on the honour of the Minister. I am merely saying that there is no answer; the Government do not have an answer to the question which the noble and learned Lord has posed.

In the absence of an answer it must be the case that the noble and learned Lord is right in saying that what the Bill proposes is the overturning of the judgment of Entick v. Carrington in 1757 which stated, and I paraphrase, that a Minister is like any other person; he has no power to burgle or invade the privacy of the home of a citizen of this country. That is the basis on which Amendment No. 4, which provides for judicial authority rather than ministerial authority, is based and I put that question to the House.

6.3 p.m.

On Question, Whether the said amendment (No. 4) shall be agreed to?

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*Their Lordships divided: Contents, 49; Not-Contents, 107.


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