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Lord Bach: I am grateful to the noble Lord, Lord McNally, for his brief introduction to this series of amendments. It is clear that they probe whether the Government's approach to the important issues surrounding intrusive surveillance is absolutely right. Perhaps I may deal with each amendment in turn.
Amendment No. 124 seems to have two aims. With regard to police and customs activities, it seeks to rule out the situation in which, in urgent cases, intrusive surveillance authorisations can take effect without the
The Chief Surveillance Commissioner has set up a system for giving approval to authorisations under Part III of the Police Act 1997 which means that there is a commissioner on duty at all times. The procedure is supported by secure communications, which means that a response can be obtained from a commissioner within a very few hours. From when the Office of Surveillance Commissioners started operation in February 1999 to April of this year--a period of some 15 months--only 12 cases had been dealt with under the urgency procedure; that is, an authorisation normally requiring prior approval of a commissioner has taken effect immediately without awaiting that approval because of the urgency involved. Those 12 cases were taken from a total of around 311 prior approval cases. The same system will be put in place to deal with intrusive authorisations for police and customs activities under these provisions. I think that that should go some way to providing evidence that the system will not be abused.
The amendment would also impose a requirement on Secretary of State authorisations. They would not take effect until a surveillance commissioner had approved the grant of authorisation and written notice of the commissioner's decision had been given. We do not believe that that would be appropriate; rather, this is a skilful way employed by the noble Lord to raise again the issue of judicial warranting which we discussed during earlier debates in Committee. The surveillance commissioners have no locus in the activities of the security and intelligence agencies. We made our position clear on judicial involvement in the issue of warrants by the Secretary of State during discussions on Part I of the Bill.
Authorisation for intrusive surveillance by the security and intelligence agencies or the Ministry of Defence will occur in extremely sensitive cases. We believe that it is a key part of the line of accountability from the agencies and department to the Secretary of State. The involvement by the executive has historically reflected the highest levels of scrutiny. Any alternative means of authorising such operations would need to show that they would lead to an improvement on a system which has proved to be remarkably effective over many years. The place for judicial influence in this process is in the oversight role provided by the Intelligence and Security Service Commissioners.
I shall turn now to Amendment No. 125. The amendment allows the surveillance commissioners to add conditions to grants of approval. It should be remembered that the role of the surveillance commissioner is one of review. It is his function to review every authorisation for intrusive surveillance to satisfy himself that the decision was reasonable and that it met the criteria; that is, that it concerned serious
If the surveillance commissioner agrees that the decision was reasonably made, he will approve it. If he does not believe that the decision was reasonable, he will cancel or quash the authorisation. We do not believe that it is his role to second-guess the authorising officer or to impose extra conditions on the authorisation. Authorisations are fundamentally operational decisions, best left to those most qualified to take them. It will be the authorising officer who, at the end of the day, is accountable for that decision and will have to justify it, if necessary, in court. However, nothing can prevent the authorising officer himself from attaching conditions or limitations on who, how, when, where or what kind of surveillance may be undertaken.
Amendments Nos. 127 and 132 would require the surveillance commissioner to give prior approval to Security Service intrusive surveillance authorisations which were granted on serious crime grounds. We believe that they are moving in a similar direction to the amendments that we have just discussed. For the same reasons, we do not believe that the amendments would be appropriate. They would represent a movement towards judicial warranting, with which we do not agree. Furthermore, they would undermine, to a certain extent, a central element in the accountability of the Security Service to the Home Secretary.
We cannot accept Amendments Nos. 128 to 131. It is worth bearing in mind that all the surveillance commissioners are serving or former High Court judges. This should continue to be the case for all those commissioners involved in intrusive surveillance authorisations. There are clear statutory powers for the commissioners to quash and cancel authorisations. Furthermore, there are clear powers for them to order the destruction of records when they consider that to be appropriate. We are referring to senior judicial figures; the issues involved may well be complex; we believe that it is right to leave the discretion in their hands.
Finally, Amendments Nos. 135 and 136 would reduce the length of time a warrant can be granted or renewed for intrusive surveillance carried out by the intelligence services from six to three months. The investigations carried out by these agencies differ from those carried out by the police and customs. They tend to be for long-term investigations involving national security and the economic well-being of the UK. We believe that a six-month warranting system for such operations is right and appropriate. The difference is reflected in the differing lengths of authorisations for interference with property under the Intelligence Services Act and the Police Act. Those differences should remain.
Lord Hylton: While we are still debating Clause 30, I understand that the senior authorising officers will be taking operational decisions, and that in nearly all cases they are individuals who are heads of their force or branch. However, in subsection (5)(l) at the bottom of page 33, the designated Customs officer can be "any customs officer" designated by the commissioners. How many Customs officers would be expected to be designated? Also, will he define more closely the phrase, "economic well-being of the United Kingdom". I suspect that I ought to know the answer. The noble Lord has perhaps defined it several times already. If that is the case, I apologise to him.
Lord Bach: If the noble Lord will forgive me, I do not intend to return to that issue, particularly when we have a large number of amendments to get through. If he will be kind enough to look in Hansard at some of our early debates in Committee, he will see that there was a debate on what that phrase means. I believe it was on the first day of Committee.
So far as concerns Customs, the noble Lord is right. Authorisation for intrusive surveillance is by a chief officer, but also, except in urgent cases--and this is very important--with the prior approval of the surveillance commissioner. Only in urgent cases can that chief officer give authority. In most cases it will be done only with the prior approval of the surveillance commissioner.
The noble Lord asked whether any designated Customs officer will do. The answer is no: the code of practice, which, I am happy to say, is due to be published in draft form before the Report stage, will limit this provision to the chief investigation officer and deputy chief investigation officer before authorisation. No one else will be allowed to do it.
I make no apologies for putting forward these amendments. I think that, sometimes, Parliament is cowed at the thought that the security services, the "spooks", are involved, and we are all supposed to suspend judgment. While I fully respect the work that our security services do, it is important that Parliament continues to scrutinise the powers that we grant them and how they use those powers. That was the spirit in which the amendment was moved and I shall read the Minister's reply with care. In the meantime, I beg leave to withdraw the amendment.