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Lord Lucas: In Clause 45 the definition of a "private vehicle" is,


and residential premises are similarly defined. So let us suppose that we have a policeman sitting in my flat, watching some drug dealing going on in the street below. Surely, that is caught by the current wording of Clause 25(3)(a) to mean that that is intrusive surveillance, merely because the policeman is sitting in my flat watching someone else because my flat is a convenient place from which to undertake the observation. There is nothing in the definition of "residential premises" or "private vehicle" to say that those must be owned or used by the person who is the subject of the surveillance.

That is the purpose of Amendment No. 105. Otherwise, any surveillance operation which in any way makes use of residential premises or a private vehicle becomes intrusive. That seems to me to be extremely odd.

As regards Amendments Nos. 106 and 109, I understand the Government's position to be that the home is sacrosanct. I am quite prepared to work with that position. But then, as the noble Lord, Lord Phillips of Sudbury said, subsection (5) is lunatic. There has been reference to a laser microphone. That uses the vibrations in a pane of glass. So the sound quality depends on the way in which a pane of quite thick glass, perhaps even double glazing, responds to sound waves. Under any circumstances, from the absoluteness of physical laws, it has to be worse than having a microphone on the premises. So subsection (5) will always be satisfied, so Clause 25(3)(b) has no effect. What the Government are saying they wish to do is entirely negated.

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If we accept entirely what the Government wish to do, then they must entirely recast subsection (5) in some way to take out that extremely high test.

Finally, I understand why an Englishman's home is his castle, and we should treat that seriously. But why is there this passion for vehicles? I thought that it was this party which was meant to treat the private car as something special. Is not the party opposite meant to be encouraging the use of public transport? If this law comes into effect, everyone will have to use cars because then they can have a mobile source of privacy. Cars will be taken to the office because people will then be able to dodge out of the office into the car and not be subject to surveillance. That seems very odd.

I should be grateful for a response on those three points because I do not believe that I have been given a satisfactory answer on anything.

Lord Bach: The noble Lord has raised a difficult point. We want to think further about it, particularly as he was supported by the noble Lord, Lord Phillips of Sudbury. Therefore, if the noble Lord will withdraw the amendment, I shall take it away and think about the points he made, particularly in relation to subsections (3)(b) and (5) to see whether or not they are inconsistent. We are grateful to the noble Lord for raising this issue and we shall come back to him on it.

Lord Lucas: A little flattery will get one everywhere! I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 106 to 109 not moved.]

Lord Bach moved Amendment No. 110:


    Page 27, line 43, at end insert--


("(5A) For the purposes of this Part surveillance which--
(a) is carried out by means of apparatus designed or adapted for the purpose of detecting the installation or use in any residential or other premises of a television receiver (within the meaning of section 1 of the Wireless Telegraphy Act 1949), and
(b) is carried out from outside those premises exclusively for that purpose,
is neither directed nor intrusive.").

On Question, amendment agreed to.

[Amendment Nos. 111 to 112A not moved.]

Clause 25, as amended, agreed to.

Clause 26 [Lawful surveillance etc.]:

Lord Cope of Berkeley moved Amendment No. 113:


    Page 29, line 4, leave out subsection (3).

The noble Lord said: Amendment No. 113 draws attention to subsection (3) of Clause 26, which says that,


    "The conduct that may be authorised under this Part includes conduct outside the United Kingdom".

I was slightly surprised that that type of surveillance, to be conducted by the various bodies to which the Committee will turn later, is to be authorised outside the United Kingdom. Presumably such surveillance

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also has to be lawful in the other country concerned, unless it takes place on the high seas. That is my first point.

In regard to other countries' surveillance here, I can see nothing in the Bill that would allow the equivalent authorities of other countries--the police and so on--to carry out intrusive surveillance here. From our point of view, that seems to be a good thing, but one would have thought that sauce for the goose would be sauce for the gander. If we are not to permit the police of other countries to carry out surveillance here, except through our police or customs, presumably we should not suggest that our police should conduct them elsewhere, but should seek the co-operation of the police in the country concerned. I would be grateful if the Minister would comment on that. I beg to move.

Lord Bach: We understand the intention of the noble Lord in moving this amendment. I shall explain why the provision is in the Bill and its effect. I shall also try to answer his questions.

The provision at Clause 26(3) would allow for authorisations under this Bill to be given for the use of surveillance or covert sources where some or all of the activity was to take place outside the UK. That can be seen to be directly relevant in the case of an intelligence agency with a remit to operate abroad, but it may also be relevant in some other areas such as drugs investigations by the police and customs.

There are geographical limits to the authorisation of intrusive surveillance. Those are set out, principally in respect of police forces, at Clause 31 of this Bill. In respect of authorisations that can have application abroad, the effect of the authorisations would be to provide reassurance to UK courts that a particular activity was, first, in accord with ECHR principles; secondly, authorised at a sufficiently high level; and, thirdly, subject to independent oversight, should evidence subsequently be brought before a court or should a Human Rights Act challenge based on that activity be made in our courts.

Without such a provision, evidence--when produced in a court in the UK--may be vulnerable to the charge that it had not been authorised in accordance with the law as required by Article 8 of the convention.

The provision does not grant a general licence to operate abroad. If the force or agency in question has no remit to act overseas, this Bill will not give it one. Indeed, for most such operations, the authorisation would cover an operation in which foreign authorities were in the lead, or at least involved. This provision would merely serve to protect any evidence arising from such operations when brought before a UK court. This is clearly desirable in helping to convict major and international criminals.

The noble Lord, Lord Cope, asks about other countries carrying out surveillance here. Foreign law enforcement agencies would obtain authorisation

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through organisations here; they would not act here without consultation and without the approval of the relevant agency based in the UK.

Lord Cope of Berkeley: I am grateful for that explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 26 agreed to.

5.15 p.m.

Clause 27 [Authorisation of directed surveillance]:

Lord Phillips of Sudbury moved Amendment No. 114:


    Page 29, line 32, leave out paragraph (g).

The noble Lord said: The point of Amendment No. 114 is relatively simple to explain. Clauses 27 and 28 of the Bill provide the circumstances in which authorisation can be given, on the one hand, for direct surveillance and, on the other hand, for covert human intelligence. As the Minister said earlier, it is part of the protection supposedly provided to citizens by this Bill and its extraordinarily wide powers, that that authorisation procedure is clearly defined and battened down.

The Committee will have noticed that, according to both clauses, authorisation can be given only where it is necessary on grounds specified in subsection (3) of Clause 27. That subsection is in the widest terms and includes national security, preventing crime, preventing disorder, in connection with economic well-being, public safety, public health, collecting tax and so on. The final paragraph, (g), states that the Secretary of State can, by order, specify other grounds on which these key authorisations can be given.

I believe that Members of the Committee agree this is a difficult Bill, an important Bill, and one in which, more than normal, we must be vigilant in protecting basic freedoms and liberties--not, I emphasise, that the Government are trying to put one over on citizens, but it is common ground that the denseness and complexity of the drafting of this legislation require us to be vigilant.

I draw to the attention of the Committee the 18th report of the Select Committee on Delegated Powers and Deregulation, published earlier this month. It states particular concern for the subsections that Amendments Nos. 114 and 117 address. The report states:


    "The Committee is of the opinion that the defining of the purposes for which an investigatory power may be used is a vital part of placing restrictions on the exercise of those powers and does not consider it to be appropriate to delegate to the Secretary of State what appears to be an unlimited power to specify other purposes".

It goes on to say:


    "It appears, therefore, that the apparently unlimited powers in"--

these clauses--


    "may be intended to allow no more than the addition of the protection of morals and the rights and freedoms of others to the purposes set out in those clauses".

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The Select Committee gathered that from a government memorandum to the Select Committee. The report continues:


    "If this is so, why are the powers not limited in this way?"--

for example, set out on the face of the Bill--


    "Paragraph 19 of the Memorandum argues that section 6 of the Human Rights Act will apply and that the powers are thus constrained by Article 8(2) 'although that limitation need not appear on the face of the bill'".

That is a quote from the Government's memorandum. The crucial finale of this matter is as follows:


    "The Committee does not accept that it is appropriate to use wide terms to define a new power and to rely on the Human Rights Act to restrict its scope when it is possible to define it so that it covers only its intended scope".

I give three cheers for that. I believe this is the first clear example that we have had before us of what I would call thoroughly lazy drafting, where the government of the day are content not to define what is or is not allowed by the government machinery in all its aspects; where they are willing to fall back on a thoroughly weak and inadequate protection by saying, "Don't worry, old chap, just go and look at the Human Rights Act and I am sure you will find a remedy there". That is simply not an answer in a case of this nature. We believe that this is an important provision that the Select Committee perfectly clearly condemns. I invite the Committee to do the same. I beg to move.


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