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Lord Cope of Berkeley: I give one cheer for government Amendments Nos. 115 and 118, which take up part of the recommendation of the Delegated Powers and Deregulation Committee that any power of this character should be subject to affirmative resolution. As the noble Lord, Lord Phillips, said, the actual recommendation of the committee goes much further and, although it is not precisely covered in the Liberal Democrat amendments, the noble Lord has a very good point.

Lord Bach: In replying to the noble Lord's amendments, perhaps I can speak also to the government amendments in this group, Amendments Nos. 203B, 205, 206, 208A to 208C and 115.

The noble Lord, Lord Phillips, quoted from a report of the Delegated Powers and Deregulation Committee. But in a later report that committee accepted the Government's reasons for doing what we are doing. It may be therefore that the noble Lord is wrong to rely on the 18th report and should rather look to the 21st report for an explanation of what we are doing and a rejection of what he proposes.

One of the recommendations of the Select Committee on Delegated Powers and Deregulation was that we should tighten up the arrangements for adding to the grounds on which the various investigative powers can be used. As has already been indicated, we considered that and accepted the weight of the argument. So we tabled the government amendments which ensure that, in respect of each of

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the powers at issue, any addition to the purposes for which those powers can be used will be subject to the affirmative resolution procedure.

We have already explained why we do not believe it is necessary to act on the recommendation of the committee that the Bill should explicitly recognise that none of the orders could include purposes which would go beyond those permitted in the convention on human rights. The Delegated Powers and Deregulation Committee, in its latest report, accepted our reasons.

As we have made clear, the powers in this Bill will be limited by the Human Rights Act. As a matter of law, not simply as a practical limitation, the Secretary of State may make no order that is incompatible with the convention. It is our view that to state on the face of the Bill that the convention rights must circumscribe any use of these orders will add nothing to the situation in law. That is an important point; it will be relevant to all legislation in the days post implementation of the Human Rights Act.

Turning to the Liberal Democrat amendments, any additions to the purposes on the face of the Bill will, as a matter of law, have to fall within the exceptions set out in Article 8(2) of the convention and should be made by means of the affirmative resolution procedure. That has now been accepted by the Delegated Powers and Deregulation Committee as giving appropriate parliamentary control and this Committee should recognise that when debating these amendments. The 21st report deals with that matter.

What scope does that leave for adding to the purposes? I need to answer this today as Amendments Nos. 114 and 117 seek to remove the power to add purposes altogether in a fashion beyond that recommended by the Delegated Powers and Deregulation Committee. The two permitted purposes in Article 8 of the ECHR, which we have not included in the Bill, are,


    "for the protection of morals",

and,


    "for the rights and freedoms of others".

That was because we could think of no circumstances where public authorities would want to use covert techniques on those grounds. But we thought it necessary to provide the power to enable the grounds to be extended for those purposes should that prove necessary. We can see a time when it may be necessary to use this enabling power in some limited circumstances which would fall within,


    "rights and freedoms of others".

Once the HRA is implemented and we have more idea of how it will impact on the activities of public authorities, we may very quickly need to look to adding purposes to the list set out and, if we do want to add purposes, we shall want to limit them as far as possible.

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The Delegated Powers and Deregulation Committee suggested that any use of the order-making power might be limited specifically to adding the purposes,


    "for the protection of morals",

or,


    "for the rights and freedoms of others",

as mentioned by the noble Lord, Lord Phillips. Those are two quite wide-ranging purposes. If possible, any extension of the powers ought, in our view, to be more specific. Certainly, we should leave that possibility open in the interests of limiting as far as possible the intrusions on privacy.

Members of the Committee will note that this is the approach we have adopted with some of the purposes already listed in the Bill. They do not follow exactly the wording of the convention rights. Some are tailored specifically to meet the requirements of investigating agencies in the modern age. We believe the purposes described fall within those allowed under Article 8(2) and we have used a formulation to narrow the purposes as far as possible.

Of course these are important issues and they are inextricably linked with the implementation of the Human Rights Act. We tabled amendments which we feel ought to provide all the reassurance the Committee requires. We do not claim a monopoly of wisdom on the Human Rights Act--we are all feeling our way--but I seek to persuade the Committee that we have done enough in that regard. I hope that, having heard my explanation, the noble Lord, Lord Phillips, will feel able to withdraw his amendment.

Lord Phillips of Sudbury: I am grateful for the Minister's response. However, I urge on him the intermediate position which the Select Committee proposed; that is, rather than simply leave it to an affirmative resolution, which would of course be an improvement on the Bill, the Bill should contain on its face the two categories to which reference has been made--morals and purposes. That would be the best way of dealing with this matter. It would not leave a completely unknown category to be added by affirmative resolution in the future.

As the cliche has it, the price of liberty is eternal vigilance. It is not a safe way of legislating for us to assume that the nice, reasonable noble Lords who sit opposite will always be in their places. That compromise would therefore be the best compromise. One hopes that the Government will consider it. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bach moved Amendment No. 115:


    Page 29, line 41, at end insert--


("(5) The Secretary of State shall not make an order under subsection (3)(g) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.").

On Question, amendment agreed to.

Clause 27, as amended, agreed to.

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Clause 28 [Authorisation of covert human intelligence sources]:

[Amendments Nos. 116, 116A and 117 not moved.]

Lord Bach moved Amendment No. 118:


    Page 31, line 8, at end insert--


("(5A) The Secretary of State shall not make an order under subsection (3)(g) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.").

On Question, amendment agreed to.

Lord Phillips of Sudbury had given notice of his intention to move Amendment No. 119:


    Page 31, line 21, at end insert--


("( ) An authorisation for the conduct and use of a covert human intelligence source whose conduct falls within section 25(7)(d) shall be governed by the same procedures as apply to the authorisation of conduct for the carrying out of intrusive surveillance.").

The noble Lord said: Perhaps I may say a word on this amendment because I was rather caught on the hop before the break for the Statement.

Many of the points made by the Minister in responding to this and the other amendments in the group will bear scrutiny when we see Hansard. I hope I shall be able to communicate with the Minister before Report stage because we are all striving to make the best of this Bill. For the moment I shall leave it at that, except to say this. The Minister said that in relation to this group of amendments he did not think the provisions were for this legislation. I do not know on what possible basis that can be so, given that the Bill provides precisely for the arrangements vis-a-vis informers.

[Amendment No. 119 not moved.]

Clause 28, as amended, agreed to.

5.30 p.m.

Clause 29 [Persons entitled to grant authorisations under ss. 27 and 28]:

Lord Bach moved Amendment No. 120:


    Page 31, line 43, leave out subsection (4) and insert--


("(4) A public authority is a relevant public authority for the purposes of this section--
(a) in relation to section 27 if it is specified in Part I or II of Schedule (Relevant public authorities); and
(b) in relation to section 28 if it is specified in Part I of that Schedule.
(4A) The Secretary of State may by order amend Schedule (Relevant public authorities) by--
(a) adding a public authority to Part I or II of that Schedule;
(b) removing a public authority from that Schedule;
(c) moving a public authority from one Part of that Schedule to the other;
(d) making any change consequential on any change in the name of a public authority specified in that Schedule.

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(4B) The Secretary of State shall not make an order under subsection (4A) containing any provision for--
(a) adding any public authority to Part I or II of that Schedule, or
(b) moving any public authority from Part II to Part I of that Schedule,
unless a draft of the order has been laid before Parliament and approved by a resolution of each House.").

The noble Lord said: In moving this amendment on behalf of my noble friend, I shall speak also to Amendments Nos. 121, 159 and 207. There was much discussion in another place about the naming on the face of the Bill of those public authorities using Part II powers. This issue was also raised by the Delegated Powers and Deregulation Committee. We have listened to the arguments put forward and our response is the schedule provided by this group of amendments. The schedule is divided into two parts. Part I lists all those public authorities empowered to authorise directed surveillance and the use and/or conduct of covert sources. Part II lists those authorities empowered only to authorise directed surveillance.

The schedule differs markedly from early versions of the list of public authorities using these powers. First, it names only the public authorities and does not go into details about which agencies within each department will be using these powers. That is because the public authority is the statutory body, not its constituent parts. However, we are intending to narrow down the different agencies within a public authority that can authorise activity under Part II of the Bill. This will be achieved by means of the order produced under Clause 29, which will specify precisely the individuals holding such offices, ranks or positions within the relevant public authority who can authorise activity. For example, the order might specify a senior immigration officer within the Immigration Service of the Home Office as able to authorise the conduct or use of a covert source.

Secondly, changes and additions have also been made to the list. The first provisional list was published during the Committee stage in another place. We made it clear then that the list was being developed and that there would be changes. Since that time we have found that a greater number of public authorities use Part II powers than we had first thought. This has been one of the benefits of the whole exercise. We now have a much clearer picture of the range and types of activity that are going on in public authorities, but we are still learning about public authorities whose activities had not previously come to our attention. This learning process is likely to go on for some time. That is why it may be necessary to add further public authorities as a result of case law developed from judgments on the definition of what is a "public authority" once the Human Rights Act (the HRA) comes into force. That is why the amendments provide for the Secretary of State, by order, to add or remove public authorities from the schedule or to move an authority from one part of the schedule to the other.

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Any addition, or movement from Part II to Part I of the schedule, will first need to be approved by Parliament. Of course, that does not mean to say that we have rejected out of hand the recommendation of the Delegated Powers and Deregulation Committee that we should remove the power to add public authorities to the schedule. We have taken careful note of the committee's view, as detailed in its 21st Report, that we should be able to produce an exhaustive list of public authorities now and that it should be for Parliament to decide by means of primary legislation whether any additional existing public authorities should be added to the schedule. Any order adding a body to the schedule would now be subject to parliamentary approval through the affirmative resolution procedure.

However, there is something between us and the Delegated Powers and Deregulation Committee on the issue. We should like to give the matter further thought. Indeed, we propose that a meeting should take place between the chairman of that very distinguished committee and my noble friend the Minister who sits beside me. On that basis, I beg to move Amendment No. 120.


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