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Lord Cope of Berkeley: My Lords, that was an astonishing response in several respects. Regarding the Home Office's careful concern for the legislative programme, given that we are awash with Bills from the Home Office at the moment--we have lists of Bills that are stuck somewhere in the parliamentary process--and given that we have another Bill to deal with in the next couple of weeks that the Home Office has just thought of, its tender concern for the legislative programme is touching.

There were other extraordinary features of the noble Lord's response. This problem will clearly be extended, mostly it seemed from what the Minister said, to public departments which do not realise that they fall under the relevant sections of the Human Rights Act. Considering all the publicity there has been about the Human Rights Act-- there have even been training sessions for lawyers on the Human Rights Act--there are still public departments which do not realise that within a few weeks they will come

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under its provisions. The Secretary of State will have to rush through orders to try to bring them in line. The reply was extraordinary because within a couple of clauses we have another quite different definition of "relevant public authorities" which is incorporated by Clause 29 and Schedule 1. It is an enormously long list. It includes all kinds of interesting bodies, including the Royal Pharmaceutical Society, which we discussed at an earlier stage of our deliberations, the Food Standards Agency and other such bodies. They are given powers for directed surveillance, covert human intelligence sources and so on, but so far they are not to be allowed to look at the reverse telephone directory. Perhaps they will be allowed to look at it in the future. But, given the Minister's reply, why on earth Schedule 1 was not allowed to cover this clause I find difficult to imagine.

It is not that we wish to deny the reverse telephone directory to public authorities that need it although, as I said earlier, I am still a little doubtful as to the exact amount of data to which a public authority in the list would be allowed to have access. However, in the light of the Minister's reply, startled as I am by it, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 25 [Conduct to which Part II applies]:

Lord Bach moved Amendment No. 37:


    Page 28, line 21, leave out ("either") and insert--


("( ) is carried out in relation to anything taking place on any residential premises or in any private vehicle; and").

The noble Lord said: My Lords, on behalf of my noble friend Lord Bassam, in moving Amendment No. 37 I should like to speak also to Amendment No. 38. We now come to Part II of the Bill. The Government are indebted to the noble Lord, Lord Lucas, for bringing to our attention an unintended consequence of the Bill's current provisions relating to intrusive surveillance. As drafted, a police officer using the residential premises of a third party as an observation post in order to carry out covert surveillance of a target outside those premises would be caught, as the noble Lord, Lord Lucas, argued in Committee, by the definition of intrusive surveillance in Clause 25(3). That was not intended. The police and other public authorities will often use the residential premises of a public-minded citizen as an observation post to follow the activities of a suspected criminal. That will not always be in connection with serious crime. The police may wish to know, for example, who is calling at the home of a suspected drug peddler. Such operations happen all the time and we never intended them to come within the classification of intrusive surveillance.

These amendments remove that type of activity from the classification. Thus, intrusive surveillance is limited to the residential premises or private vehicle of the subject of the surveillance or to other premises or vehicle where the information obtained from a device is of the same quality and detail as might be expected to be obtained from a device actually on the premises or in the vehicle. I beg to move.

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10.30 p.m.

Lord Lucas: My Lords, it is always a pleasure to find out that one has something right. It does not often happen on the Opposition Benches, but it has happened not only on the Opposition Benches today but also on the Government Benches, which is even rarer, as I remember from my years as a Back-Bencher when we were in government. I am delighted by the amendments. They are much better drafted than the ones I tabled. I am very pleased to see them in the Bill.

On Question, amendment agreed to.

Lord Bach moved Amendment No. 38:


    Page 28, line 22, leave out from ("individual") to end of line 26 and insert ("on the premises or in the vehicle or is carried out by means of a surveillance device").

The noble Lord said: My Lords, this amendment has already been spoken to. I beg to move.

On Question, amendment agreed to.

Lord Lucas moved Amendment No. 39:


    Page 28, line 41, leave out ("the same") and insert ("similar").

The noble Lord said: My Lords, this amendment relates to a discussion we had on an amendment in Committee which was not greeted with approbation in the reply that I received from the Minister. I have tried with the amendment to move the argument on a little. I understand where the Minister is coming from in talking about the kind of devices he wishes to consider as providing intrusive surveillance of what is going on inside a property. I merely wish to make the point that I made, among others, in Committee, that the use of the words "the same" rules those out on the pure ground of the physics of these matters. It can never be the "same". The use of an optical system is bound to introduce distortion and loss of quality. If one is using a laser-based listening device, one has a sheet of glass. That will seriously degrade reception. However good the laser, the glass gets in the way. That will seriously degrade the quality of data and the quality of listening.

However good the laser system, on the basic laws of physics it will never be "the same". It absolutely cannot be. It is no good the Minister hoping that law writing can go against the laws of physics. It cannot. Therefore, no such device will ever be intrusive surveillance if anyone chooses to push it to a court case. It is not "the same". That is why I propose in the amendment that we should have the word "similar", which would allow the physics to be accommodated in the law. One can say that a laser device provides a "similar" level of performance as one could achieve with a microphone in a room, but it definitely does not, and never will, provide the "same" level of performance. I beg to move.

Lord Phillips of Sudbury: My Lords, in Committee I spoke on this amendment in the same terms as the noble Lord, Lord Lucas. The logic seems to be as irresistible today as it did then. I cannot see why the amendment is not acceptable. I hope that it is.

Lord Cope of Berkeley: My Lords, I, too, hope that the amendment is acceptable, although it occurred to

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me this morning when I was considering the issue that even "similar" may not be the correct word. What we mean is "as good as". The "same" means that it is neither better nor worse; "similar" means that it is not much better or not much worse; what we really mean is that it should be "as good as".

Lord Bach: My Lords, this amendment would bring a greater range of surveillance activity within the definition of "intrusive surveillance". We do not want to do that. In Committee an amendment was tabled around subsection (5) of this clause. The noble Lord, Lord Lucas, was somewhat sceptical that a device outside residential premises or a private vehicle could ever produce material of the same quality as if it were located in those premises. I know that that doubt is behind the amendment.

I begin by saying that we are assured that it is indeed possible to obtain material of the same quality and detail by remote means. Furthermore, given the rapid progress being made in all fields of technology, we consider this provision to be a wise piece of "future-proofing". It is therefore the Government's view that the test of the "same quality and detail" is the right one.

It may be, for example, that some interference may result when one obtains audio material remotely, but the same may also be true when a device is present in the premises and the product from that device is transmitted back to those listening. However, the detail and quality--what can actually be heard--is the same.

It might seem that this amendment is simply a matter of semantics. However, the noble Lord's amendment would also have the effect, as I said at the beginning of my remarks, of bringing a greater range of surveillance activity within the definition of intrusive surveillance.

The Bill as it stands includes within the definition of intrusive surveillance those operations or investigations where the police or others use highly sophisticated equipment to obtain details of a conversation inside either a person's home or his private vehicle without installing a device on those premises. To extend the definition of intrusive surveillance to surveillance which produces material of a similar quality to that which could be obtained from a device actually present on the premises would not, in our view, be sensible.

This broader definition would risk catching activities which are much less intrusive, such as watching and photographing activity seen through the window of a house, which is properly defined now as directed surveillance. Indeed, perhaps I may quote the noble Lord's own words when we discussed this in Committee. He said that,


    "merely watching something from outside",

does not fall,


    "within the ordinary definition of 'intrusive'".--[Official Report, 28/6/00; col. 927.]

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I ask the noble Lord to reconsider this and to withdraw his amendment.


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