Previous Section Back to Table of Contents Lords Hansard Home Page


Lord Monson: I have only just looked at this group of amendments and have not had a chance to study them in detail. However, it seems to me at first glance that Amendment No. 103 tabled by the Liberal Democrats is a particularly good one. If that could be agreed to, we should save a great deal of time.

Lord Bach: I can agree with the noble Lord, Lord Phillips of Sudbury, to the extent that Clause 25 is complicated. But it is not the first complicated clause that Members of the Committee have had to consider, nor, I dare say, will it be the last. The noble Lord knows as well as I that the point made by my noble friend Lord Williams of Elvel is absolutely right. If there were objections by his party to this grouping--which, I concede, is extensive-- they should have been taken at another time. We are faced with the grouping now and, like the noble Lord, I shall do my best to answer the questions raised and deal with the amendments proposed.

Perhaps I may turn immediately to the question raised by the noble Viscount, Lord Goschen, as to who is covered by this part of the Bill. The answer is short. It is public authorities, in the broadest sense of the word, which are covered. Organisations which are not public authorities are not covered.

That takes me straight to the point made by the noble Lord, Lord McNally--who I know cannot be in his place at this moment--about the alliance against counterfeiting, whose exact name I cannot remember. That body is not a public authority and, therefore, could not be authorised to carry out surveillance under Part II. It is not a bad example. However, if it is decided that organisations are public authorities for this purpose, the schedule can be amended.

Lord Lucas: Will the noble Lord expand a little on the consequences of that decision for an institution such as the campaign against copyright theft, or people making investigative television programmes? Does the Human Rights Act mean that these people will now be liable for prosecution for entering and infringing people's privacy; or will they just trundle on much as they have done previously, without any adverse consequences?

Lord Bach: I want to be very careful in what I say, because we were taken by surprise by the mention by the noble Lord, Lord McNally, of the body in question. Our first view is that it is not a public authority. If we are wrong, what I am about to say does not apply, because it would be a public authority and thus covered by Part II.

This is the first time such surveillance, whether done privately or publicly, has been regulated. This is so to the extent that named public authorities will have the power to do this under close regulation. The status of private organisations that conduct themselves in such

28 Jun 2000 : Column 910

a way needs careful consideration. To adopt a phrase used not long ago, I am not prepared to speak off the hoof on that aspect. I should like to consider what the noble Lord said about it and perhaps write to him. I do not want to commit the Government to saying what the Bill provides about those organisations that are not public authorities and are therefore not covered by Part II. On the face of it, they would seem at the very least not to be acting in the context of the Bill.

I turn to the other amendments, hoping to be forgiven if, in the main, I deal with them in numerical order. The first four amendments, Nos. 100, 101, 103 and 104, spoken to by the noble Lord, Lord Phillips of Sudbury, address the fundamental concepts in Part II. We appreciate the concern to protect the privacy of individuals but we do not believe that the amendments adequately consider the practicalities. Their result might be to extend the stringent requirements attached to the authorisation of intrusive surveillance to a much wider range of activities presently covered under the provisions for directed surveillance. They would also lead to a great deal of confusion and uncertainty for the operational practitioners about what constitutes directed or intrusive surveillance.

There is no problem in identifying in advance operations involving residential premises or private vehicles. However, the same cannot be said about mobile surveillance, which makes up the majority of operations. It may well involve cases in which an individual considers that he has a reasonable expectation of privacy, even though that expectation would vary from one person to another. This would mean, for example, that the police would have to know before each covert surveillance operation began where their target was likely to go and whether he would find himself in circumstances in which he, or another, might have a reasonable expectation of privacy.

Generally speaking, the police and other operatives would not have that information and therefore could not make the judgment. They would not know, for example, at the start of the day whether their target would spend the day dealing in drugs, meeting criminal associates to plan an armed robbery or meeting a friend, going for a drink or a meal and then visiting the home of another friend. To expect the police and others carrying out surveillance to make a decision beforehand on the expectation of privacy of the target and his associates is unreasonable and impractical.

The level of intrusion is proportionate to the seriousness of the offence or other activity being investigated. Therefore, we have restricted the use of intrusive surveillance so that it can be carried out only on the grounds of serious crime and in the interests of national security or the economic well-being of the United Kingdom. However, the definition in the noble Lord's amendments would incorporate a significant number of other activities undertaken by other public bodies. These range from investigating tax evasion and benefit fraud to health inspections of restaurants.

No central records are kept of the number of covert surveillance operations carried out each year. Estimates by the police suggest that they alone

28 Jun 2000 : Column 911

undertake more than 60,000 operations. In addition, operations are carried out by Customs, the security and intelligence agencies and many government departments and local authorities. Those activities are covered within the provisions of the Bill but are not classed as intrusive surveillance. To expect a greater number of such cases to require prior approval would bring these statutory functions to a standstill, significantly restricting the activities of the police and others. We need clear guidelines that operatives can easily follow, setting the specific circumstances and locations where people have a legitimate and reasonable expectation of privacy. People generally have the greatest expectation of privacy in their homes and in their private vehicles when going about their everyday lives.

We have also responded to the special protection given by Article 8 to a person's home. These are the instances in which we have restricted action to serious cases and to which we have given the highest level of protection. There are other situations in which we think that a person's right under Article 8 also needs to be carefully weighed against the purpose for which surveillance is required. These are dealt with as directed surveillance, but we think that the most intrusive categories need to be fenced off, kept separate and made subject to the most stringent safeguards.

I hope that the noble Lord, Lord Phillips of Sudbury, will see that there are practical difficulties in what I know were probing amendments to see where we stood and that in due course he will withdraw them.

I turn to Amendment No. 102, spoken to by the noble Lord, Lord Cope of Berkeley, which might restrict what can be authorised as part of directed surveillance. The words in brackets in Clause 25(2)(b), which he seeks to remove, provide for authorisations in circumstances in which either the suspect has not been identified or the operation under consideration might reasonably be expected to infringe the privacy of people other than the main target. If it is proportionate to the offence under investigation, such surveillance should be capable of being authorised. Surveillance of a known drug smuggler may well involve an invasion of his wife's privacy too. The Bill allows for that, in regulated circumstances and subject to oversight. Another example is that the police might be aware of organised drug dealing in which an exchange of drugs and money takes place but not know the names of those involved. They might well, and justifiably I would argue, carry out surveillance and follow persons who attended the meeting.

Amendment No. 107, again a Liberal Democrat amendment, would make it clear that the consent of the owner of the property to surveillance is irrelevant for the purposes of the Bill. We have no argument with the intent of the amendment, but it is unnecessary. If a property owner--for example, a prison governor acting on behalf of the Prison Service--allows access to plant a device in a prison cell, that should of course be authorised at the highest levels, regardless of that consent. The Bill provides for that. It is a specific gap in the Police Act 1997 and the Intelligence Services Act

28 Jun 2000 : Column 912

1994 which the Bill fills in anticipation of the implementation of the Human Rights Act 1998. The 1994-97 Acts focus on interference with property, which can be circumvented with the collusion of the property owner. The Human Rights Act brings a focus on interference with privacy, which cannot be circumvented in the same way.

Amendments Nos. 108 and 138, again spoken to by the noble Lord, Lord Phillips of Sudbury, would remove from the category of directed surveillance interception with one-party consent. We understand the objection to the provisions but we brought them forward after some thought. The important point is that interception with one-party consent will require the same level of authorisation as directed surveillance. We do not deny that the privacy of the third party in such a call is invaded, so such an activity needs to be authorised and subject to oversight. But, plainly, a kidnap situation in which anxious relatives receive phone calls from the kidnapper or the situation of a victim receiving malicious phone calls are different from listening in to a call between two drug smugglers. That is recognised by the lower level of authorisations required. It is important to keep this flexibility.

I turn to Amendments Nos. 111, 112, 116 and 119, all in the name of the noble Lord, Lord Phillips of Sudbury. They seek to engineer an extra category of covert sources. This would be the category of agents or informants who as part of their tasks themselves become involved in the criminal activity. For these cases the amendments propose the highest levels of authority, such as those required to authorise intrusive surveillance.

These are important but not simple matters; nor are they ones that can be, or should be, addressed in this legislation. This legislation is concerned with intrusion into privacy. Part II of the Bill in particular focuses on situations in which privacy can be invaded for legitimate purposes. It sets out the checks and oversight required for occasions when privacy is invaded in this way. It does all of this to ensure compatibility with convention rights, as will be required when the Human Rights Act comes into force in only a few months' time.

The tasking of covert sources is part of the authorisation process set out in the Bill. If an informant or agent is to be used to derive private information, the use of that source should be authorised. The authorisation granted under this Bill will not include giving immunity from prosecution for criminal activities undertaken by the covert source. That must remain a matter for the prosecution authorities and courts on an individual basis, as now. Additionally, the purpose of an authorisation is not to give legal cover to potential criminal activities but to give a lawful basis to conduct in such a way as to make it ECHR-compliant. Therefore, we believe that the higher levels of scrutiny suggested in these amendments are not needed.

I turn finally to Amendment No. 112A in the name of the noble Lord, Lord Cope of Berkeley. The amendment seeks to bring anyone who provides

28 Jun 2000 : Column 913

information covertly about crime within the definition of a covert source. We have, quite properly, excluded from the terms of this Bill ordinary members of the public who, out of a sense of civic duty, come forward with information to the police about suspected criminal activity. There are many public contact numbers, such as that for Crimestoppers, which encourage people to come forward with information. Such persons may have obtained the information by chance. They do not want to be subsequently involved, or form any long-term relationship, in order to obtain or disclose further information. They are not being tasked by the police or others to establish or maintain a covert relationship for this purpose.

If we were required to treat all such persons as covert sources, with the requirements in relation to record-keeping and handling, we believe that it would bring the total number of covert sources in this country to many hundreds of thousands. It would also create a massive and unnecessary administrative burden; and it might quickly discourage members of the public from providing the police with vital information and bring to an end that source of information. We cannot countenance that. On that basis, I ask the noble Lord--I understand that he raises this issue to hear the view of the Government--to withdraw his amendment in due course.

On Question, amendment agreed to.

[Amendments Nos. 100 to 102 not moved.]


Next Section Back to Table of Contents Lords Hansard Home Page