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Lord Cope of Berkeley moved Amendment No. 31:


On Question, amendment agreed to.

Clause 4 agreed to.

Clause 5 [Interception with a warrant]:

Lord Phillips of Sudbury moved Amendment No. 32:


    Page 7, line 28, leave out ("the Secretary of State") and insert ("a judge").

The noble Lord said: I am not sure whether I still have the spirit to move this amendment, having heard about England's defeat by Portugal by three goals to two.

Lord Bassam of Brighton: A nation mourns.

Lord Phillips of Sudbury: However, the show must go on and the Bill must be scrutinised.

The nine amendments in this group all address a single, simple point; namely, whether the issue of a warrant under this clause, as specified in Clause 7, should be undertaken at the behest of the Secretary of State or at that of a judge.

We are all aware of the status quo contained in the Interception of Communications Act—if one may call that a status quo. That legislation provides for the Secretary of State to undertake this onerous task. I believe that I am right in saying that on average he has to deal with something in excess of seven warrants on each working day.

It is not my proposition, nor that of these Benches, that the Secretary of State is "unfit" in the normal sense of the word to undertake the task. However, it is our belief that times have moved on and that a considerable body of informed opinion in the country now believes that this task would be better undertaken by a judge, in particular in the context of a Bill containing the most wide-ranging and extensive powers of intervention in the private lives of citizens and organisations of the state. Again, I emphasise that there is no wish or intent on our part to suggest any bias or intentional abuse, shall we say, of the rights and duties which the issue of warrants would bestow on the Secretary of State under the provisions of the Bill.

However, the world that this Bill will control is one which comes ever closer to the private citizen in more and more dimensions of his or her life. As I have said, we are of the view that, whereas in the past it may have been satisfactory to continue with a system in which the Secretary of State had a monopoly of power in this regard, now the time has come to recognise that a separation between the Secretary of State and the powers to issue such warrants is desirable.

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I say that particularly in light of the fact that we are dealing here with issues of human rights that are of considerable import. We are dealing with them in a context where the Secretary of State will be exercising these powers in secret, without the citizen concerned ever knowing that those powers have been exercised. The burden on the Secretary of State will inevitably be greatly enlarged by the Bill. This may indeed be one matter which he or she would be happy to hand over to a judge.

As to accountability, it may be said that nothing is better than the present circumstance. I venture to doubt that proposition, given the covert nature of the exercise of the power, and given that I do not believe that a busy Secretary of State can reasonably be expected to give case by case consideration to warrants when they are pouring on to his or her desk even at the current rate, let alone the rate that is to come.

Other states with which we have close relations, such as Germany, give this power to a judge—except, in the case of Germany, where national security is involved. We all ought to consider this matter carefully. There is a great deal of public concern about the nature of the Bill, particularly its human rights dimensions. For those reasons, I commend the several amendments in the names of myself and colleagues. I beg to move.

The Chairman of Committees (Lord Boston of Faversham): As Amendments Nos. 41 and 42 are also being spoken to, I must point out to the Committee that, if Amendment No. 41 is agreed to, I cannot call Amendment No. 42. For the sake of completeness and accuracy, perhaps I should also offer an apology to the noble Lord, Lord Phillips of Sudbury, because his name is spelt wrongly. It should of course be "Lord Phillips of Sudbury", not "Lord Phillips of Subdury"!

Viscount Astor: I am sure that the mistake is entirely unintentional.

My Amendment No. 47 is grouped with this one. Before speaking to it, however, perhaps I may add a comment on the amendment moved by the noble Lord, Lord Phillips. We agree with the Government on this amendment. We believe that the Secretary of State should have this power. The Secretary of State is able to have a wider view and take more points into consideration. It is important that the Secretary of State is burdened by these decisions—that is why he is there.

The noble Lord, Lord Phillips, spoke of the covert nature of some of the decisions. That provides an even greater reason why the Secretary of State should be required to take these decisions. Frankly, I am nervous of giving this power to judges. The Secretary of State is answerable to Parliament. I am happy with that: Ministers are answerable to Parliament; judges are not.

In recent times, under governments of both parties, legislation passed by Parliament has been interpreted by judges in a way that no one ever expected. That is further reason why the power should rest with the Secretary of State. That is the correct place. I am

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against extending such power to judges. That would be wrong. The Secretary of State should be answerable to Parliament on such issues.

My Amendment No. 47 relates to Clause 9(1)(b), which states that a warrant may be renewed by the Secretary of State,


    "or, in a case falling within section 7(2)(b), under the hand of a senior official".

As I have said, Ministers should be answerable to Parliament. I am therefore nervous also about the idea of this power being transferred to a "senior official". I regard it as a retrograde step. I do not know whether it should be the Secretary of State or, indeed, any other Minister in the department. I do not know the real definition of a senior official. Is it purely someone within the Home Office, for example? It does not say so. Officials are not accountable to Parliament.

There is a definition in Clause 72, on page 78:


    "'senior official' means, subject to subsection (6), a member of the Senior Civil Service".

I am sure that there is a definition somewhere, lurking in a Sir Humphrey-type way, of who is a member of the Senior Civil Service. It would be useful to know how many members of the Senior Civil Service there are in the Home Office. Are there two or are there 222? I have no idea what those definitions are. It would be useful if the Minister explained.

What really concerns me is that the definition says "subject to subsection (6)", because subsection (6) states:


    "If it appears to the Secretary of State that it is necessary to do so in consequence of any changes to the structure or grading of the Civil Service, he may by order make such amendments of the definition of 'senior official' in subsection (1) as appear to him appropriate to preserve, so far as practicable, the effect of that definition".

The nice way of looking at that is to say that someone changes the grades and there is an extra grade—grade six or seven or whatever it happens to be, and that is it. But the worry is that a Secretary of State can say, "We wish to lower this decision-making to a much wider group within the department" and may add a vast number of people. That is why I am fundamentally against the principle.

Ministers should be answerable to Parliament. It is an unfair burden to put on senior officials. I am extremely concerned about the idea that the Secretary of State can change the definition at almost any time he wants, for whatever reason. I am sure that he would consider doing it only for the right reasons, but the fact is that the power is there; he can do it whenever he wants and for whatever reason.

The power should rest with Ministers. It follows the logic of the Government's case that the Secretary of State, not judges, should have the power. That follows naturally, and therefore I would hope that the Minister will consider my amendment very carefully. I regard it as being of enormous importance, because it affects the Government's answerability to Parliament. We regard that as being extremely important, particularly in the House of Lords.

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10 p.m.

Lord Archer of Sandwell: I did not participate in the Second Reading debate. That was not primarily because I had to be elsewhere; it simply reflected my abysmal ignorance of the subject matter of the Bill. I was born into the age of the carrier pigeon. But some of the principles that the Committee has been debating today are matters that can be understood even by those of us who do not follow all the technology involved.

I intervene at this stage for a particular reason. I am privileged to serve on the Intelligence and Security Committee, chaired with great distinction by Mr. Tom King. There are members of that committee who have a great deal more expertise in this field than I shall ever claim to have. In fact, almost every other member of the committee would be in that position. But they were precluded from participating in the debates in another place because the authorities, in their infinite and unfathomable wisdom, scheduled the Report and Third Reading debates in a week when the committee was 4,000 miles from the Chamber. Therefore, some at least of the comments that the committee had wanted to make fall to me to make at this stage.

I believe, first, that the Government have responded handsomely to some of the representations that the committee made. The committee was anxious that that should be placed on the record. Secondly, the committee has an interest in this debate because, among other things, it believes that the Government have the balance about right.

It has been stated repeatedly today, I believe without contradiction, that the powers which are being regulated by the Bill are necessary if the public is to be protected from a whole spectrum of serious crime but that they can be used obtrusively, and can be oppressive, and it is important that they are properly regulated.

That being so, the Government have addressed the issue by the following scheme. The application has to be made by someone who is listed in Clause 6. I understand that the Committee will debate that clause a little later. It has to be someone responsible in both senses of that word. That is the first stage.

The second stage at present is that it is to be considered by the Secretary of State or, in certain narrowly defined circumstances, by the senior official. I believe that that is right. I believe that it should be considered by someone who is a member of the executive, answerable for the execution of law enforcement and who is close—I say only close; I do not attempt to define it more than that—to the agencies which have the responsibility for operation. I can say from my own knowledge that Ministers who have that kind of responsibility take it very seriously. In a somewhat different context, I had to sign warrants at one period. They were manageable in number. I made all necessary enquiries before I signed them. I have spoken to many colleagues who have held high office, in particular as Secretary of State for Home Affairs. They have assured me that the same has been

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true of them. I think that the Secretary of State is the best person at that stage in the balance which the Government have arranged.

The third stage is that the Secretary of State's decision can be reviewed by a commissioner. I understand that the commissioners will be selected from the senior judiciary. It is at that stage that one has a judicial scrutiny. That is the way in which, constitutionally, we have normally arranged our affairs. It is at the stage when it reviews what the executive has done that the judiciary intervene.

Perhaps the Committee will permit me to say in parenthesis that there is a fourth stage. There is a tribunal to ensure that the proper procedures have been carried out. If I may wear a hat which I discarded last year, it is in accordance with the normal advice of the Council on Tribunals that there should not be a proliferation of tribunals. The Government are to be congratulated on bringing all the relevant tribunals under one umbrella. I believe that the Government have the right series of stages to ensure that the powers which are being regulated in the Bill are not in danger of being abused.

In agreeing with the noble Viscount, Lord Astor, perhaps I may make one further remark. As I understand it—no doubt my noble friend on the Front Bench will confirm it if true—the intention of having an official considering the application is narrowly defined, I suspect, for a situation where it will not be easy to find a Secretary of State, or even a middle-ranking Minister. There may be occasions—I believe that they would be rare—where that situation may arise. It would be a great pity if a major crime were not prevented because there was no one in a position to consider and grant the application. I shall be interested to hear what my noble friend says about that.


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