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Lord Phillips of Sudbury: Before the noble and learned Lord sits down, perhaps I may mention this. He referred to the power of review. Does he accept that it is a general power of review and not a case by case review?

Lord Archer of Sandwell: I understand from the commissioners who operate at present that they consider individual cases. If they think that a problem is arising in relation to individual cases, they report accordingly.

Viscount Astor: I am grateful for the noble and learned Lord's support. There was never a case, so far as I am aware, where a Minister was not on duty at or very close to the Home Office. I accept the point that it would be wrong for a document not to be signed because no one was available. But in practice there is always someone present in the Home Office.

Lord Archer of Sandwell: The noble Viscount's experience of the Home Office is probably greater than mine. It would be a pity if I fouled up my noble friend's

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reply to this debate by saying something with which he may not agree. It may be better, therefore, if I subside at this stage.

Lord Lucas: Can the Minister take the opportunity to explain Clause 7(2)(b)? It appears that there is an exemption from the Secretary of State having to sign a warrant in a case where we are likely to know as little as possible and have the least reason to trust the person who has asked for the warrant, that is when it comes from overseas rather than from someone with whom we are generally used to working. There is a very odd provision in Clause 7(2)(b)(ii), which says,


    "the interception to which the warrant relates is to take place in relation only to premises outside the United Kingdom".

If it relates to premises outside the United Kingdom, why is it within our jurisdiction?

Lord Bach: The intention of Amendments Nos. 32, 33, 37, 38 and 41 is to remove the power of the Secretary of State to issue interception warrants. Instead, this power would be handed to the judiciary, specifically a circuit judge in England and Wales, a sheriff in Scotland and a county court judge in Northern Ireland.

This serious debate has, of course, a long history and was certainly discussed at some length at both Committee and Report stages in the other place. We accept, of course, what was said by the noble Lord, Lord Phillips of Sudbury, that this is not an attack, veiled or otherwise, on the Secretary of State. The motive behind these amendments is absolutely clear.

The arguments put forward by those who advocate judicial involvement do not at the end of the day persuade the Government that that is the right course to take. We maintain the view that authorising interception involves particularly sensitive decisions that are properly a matter for the executive. This involvement by the executive has historically reflected the very high level of scrutiny which this particularly intrusive means of surveillance has attracted. The warrant-issuing process is a key part of the line of accountability from the law enforcement and intelligence agencies to the Secretary of State. Any alternative means of authorising interception would need to show that it will be an improvement upon a system which has proved to be remarkably effective over many years.

I can reassure noble Lords, however, that all interception warrants have to pass through highly experienced staff in the warrants unit who are able to identify any errors at an early stage. This process adds consistency to the way in which warrants are handled and provides a degree of oversight prior to the Secretary of State being presented with a warrant for consideration.

Of course, there is an important, vital place for judicial involvement. That comes, as my noble and learned friend Lord Archer of Sandwell said, in the independent judicial oversight provided by the commissioners and the tribunal, who are there to provide a remedy if the executive has acted outside its

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statutory powers. We do not believe, however, that judges can reasonably be expected to make decisions on what is or is not in the interests of national security.

The European Commission of Human Rights has endorsed the present practice of executive authorisation—for example, in the case of Christie v United Kingdom. In addition, and importantly, the current system was recently endorsed in the last report of the previous Commissioner, the noble Lord, Lord Nolan.

Perhaps I may draw the Committee's attention to one further aspect which is relevant to the discussion that we shall have on Clause 12. Requiring the Secretary of State to authorise interception means that he or she keeps a close eye on the demands made of communication service providers in respect of the interceptions they are asked to effect. That is particularly the case because in practice only a small number of Secretaries of State perform the function. It is limited normally to the Secretaries of State at the Home Office, the Foreign Office and the Northern Ireland Office and, previously, the Scottish Office. It concentrates knowledge of the burdens placed on industry. Once the requirements of industry are established under Clause 12, it will be very important that the Secretary of State keeps an eye on the use made of the capability. This cannot easily be done if individual interception warrants are authorised by judges.

10.15 p.m.

Lord Mackay of Ardbrecknish: I thank the noble Lord for giving way. Listening to that argument, I was intrigued to hear him say "previously" by the Secretary of State for Scotland. Perhaps he could tell me who under the Bill will be the relevant person as regards Scotland.

Lord Bach: As soon as I mentioned Scotland and saw the noble Lord in the Chamber, I knew that someone had made a mistake! I understand that it is Scottish Ministers in Edinburgh by way of devolved government. If I am wrong about that, I shall return to the matter later in my remarks.

I was grateful for the comments of my noble and learned friend Lord Archer of Sandwell. He speaks with great authority on these matters and the Government are reassured by his support. He has a most distinguished record not only in the area of intelligence and security but as a former Solicitor General of great distinction.

The other amendments in the group have been tabled in order to remove the role of a duly authorised senior official to issue a warrant under certain circumstances. These circumstances, which are most specific, are when a warrant application is urgent or when a request has been made under the mutual legal assistance convention. I believe that the noble Lord, Lord Lucas, was sceptical about that last issue.

It might be helpful if I explain the procedures which must be followed in urgent cases. First, the senior official who signs the warrant must be expressly

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authorised to do so by the Secretary of State. Secondly, the express authorisation must be in relation to that particular warrant only. Thirdly, the official who signs the warrant must endorse on it a statement that he has been expressly authorised by the Secretary of State to sign that particular warrant. So even when the urgent procedure applies, the Secretary of State must have given personal consideration to the application in order to give instructions to a senior official for the signing of that particular warrant. An additional safeguard is that in such circumstances the warrant is to last for five days only. I hope that that goes some way to assuring Members of the Committee that these provisions have been looked at carefully and that the authorisation and actions required under such circumstances are strictly prescribed.

I hope that the noble Viscount, Lord Astor, for whose support of the main part of the amendment we are grateful, will be satisfied by the fact that under the Interception of Communications Act 1985 provision was made for the signing of a warrant in an urgent case by a senior civil servant; an Assistant Under-Secretary of State. As regards urgent cases, that has been the case since 1985 and I do not believe that that power has ever been misused. Therefore, we are not making up new law; this has already been on the statute book for 15 years.

The other circumstance which allows for a senior official to issue a warrant relates to a request made under an international mutual legal assistance agreement. Here, the interception subject, or the premises where communications are to be intercepted, must be outside the United Kingdom. In such circumstances, a warrant may be issued if the competent requesting authorities have already issued an interception order against a subject of interception. Therefore, by the time it reaches us, an interception order will already have been issued against the subject of interception. As we are making no decision on the merits of the case, and the purpose of the warrant is solely to provide technical assistance—in other words, with a satellite interception or a telephone interception on foreign territory—we consider it appropriate for the warrant to be issued by senior officials rather than by the Secretary of State. I hope that that answer goes some way to satisfying the noble Lord, Lord Lucas.

I was asked what was meant by a "senior civil servant". A senior civil servant is someone who is at grade 5 and above; in other words, an Assistant Secretary or above.

In a recent and telling intervention, I was also asked about Scottish warrants. According to the Bill, they are issued by the Secretary of State. However, a devolution order under the Scotland Act will transfer that function to Scottish Ministers—in practice, the Scottish First Minister—in matters which involve serious crime. I hope that that answers the noble Lord, Lord Mackay of Ardbrecknish.

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I hope that the comments that I have been able to make on these matters have satisfied the noble Lord who moved the amendment and that he will feel able to withdraw it.


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