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Baroness Blatch: The detail of Clause 2 has not been debated by the Committee but it is none the less important. I entirely accept the mechanism used by the noble Lord, Lord McIntosh, in order that we should have this debate. One of the principles which will underpin the Security Service's involvement in the work and to which I referred during the Second Reading debate, is that the Security Service would be able to draw on its full range of skills, capabilities and expertise. That is designed to preserve the service's operational effectiveness.
To ensure that the Security Service is able to deploy all its capabilities, it will under certain circumstances require special authorisation to enter or interfere with property. These authorisations are known as "property warrants" and Clause 2 will allow the Security Service to apply for property warrants under its
In keeping with the principle that the Security Service should be able to draw on all its capabilities, this safeguard now needs to be adjusted to allow the service to apply for serious crime warrants in the United Kingdom. The prohibition will continue to apply to the other two agencies.
This is a highly intrusive power which demands the application of detailed safeguards to control its operation. Accordingly, warrants are signed by the Secretary of State with additional oversight from the commissioner, who also assists the tribunal in this aspect of its complaints work.
As a further safeguard, when applying for a serious crime property warrant, the application must meet the test of the definition of serious crime given in Clause 2 of the Bill. This is the same definition that Parliament approved to govern the issue of warrants under the Interception of Communications Act 1985. That has worked very well and we see no reason to depart from it now. Furthermore, it would not be sensible if the Security Service required interception warrants and property warrants in the course of an investigation and had to meet different tests for each warrant.
That is the position for the Security Service, but it is true that the position for the police is rather different. The police also carry out this kind of intrusive operation and it represents an important investigative tool for them. At present, though, the conduct of police intrusive surveillance operations is governed by administrative guidelines. These administrative arrangements have served us well and there is no evidence of abuse. Again, the noble Lord, Lord Knights, said how rarely the powers were used. But the Government have accepted the desirability of placing this type of operation on a statutory footing.
We are not using the present Bill for these changes, as some have suggested we should, because it is deliberately limited to a single issue that can sensibly be tackled in isolation. It is concerned only with the functions of the Security Service. The question of police surveillance operations is a complex one and we do not want to legislate hastily or improvidently or in a way that inhibits the operational effectiveness of the police in this area. We also need to take account of other initiatives, including the details of the new national crime squad and the new arrangements for NCIS. We are giving careful consideration to the options, in consultation with the police, and hope to bring forward legislation as early as possible.
In the meantime, the simple fact that the police do not yet have a statutory basis for the power is no reason to deny the power to the Security Service, when the exercise of that power is surrounded by a formidable set of safeguards. I can give the Committee the assurance that the Security Service will have no powers that the police do not have. The police have the same powers as the Security Service in regard to entry to or interference with property, but the police exercise those powers on the basis of chief officer authorisation. Although that system has worked well, the Government accept the need to put it on a proper statutory footing at the earliest possible opportunity.
The noble Lord, Lord McIntosh, asked about the extension of powers to bug. I must continue to repeat myself: the Bill will allow the Security Service to apply for warrants authorising entry on or interference with property in the United Kingdom in serious crime cases. These powers are subject to the safeguards I described. As I have already said, the powers exist; they are being extended to a new situation.
My noble friend Lord Campbell referred to bugging. The power available to the Security Service to enter on or interfere with property, which covers bugging, is overseen by the Security Service Commissioner appointed under the Security Service Act 1989.
The noble and learned Lord, Lord Browne-Wilkinson, described this as a major constitutional shift. The powers to enter or interfere with property were first set down in statute in the Security Service Act 1989 and the Intelligence Services Act 1994. I repeat, there are no new powers. It is merely that the powers that do exist are extended to a new area of activity.
Lord Browne-Wilkinson: Will the Minister tell the Committee whether those powers were exercisable in England in relation to property in England in relation to criminal matters? That is the big move that has taken place.
The noble and learned Lord, Lord Browne-Wilkinson, referred to the case of Entick v. Carrington. That case concerned the requirement at common law for lawful authority before there could be interference with property. There will be lawful authority under the Bill when the Security Service obtains a warrant to interfere with property.
The noble Lord, Lord Knights, referred to the 1984 police guidelines not covering entering property without the owner's consent. The 1984 guidelines do cover entry on to property for the purposes of placing a bug without the consent or knowledge of the property owners. The powers are used very sparingly and with appropriate safeguards; but they nevertheless exist.
Lord McIntosh of Haringey: The Minister's reply was truly breathtaking. Let us be clear what we are talking about. We are talking not just about a search for evidence of the kind recognised for many years by a warrant given by a magistrate or by the High Court. We are talking about what is technically called "intrusive surveillance". The Minister herself described it as "very intrusive".
Intrusive surveillance means interception of post and telecommunications, as the noble Lord, Lord Campbell of Croy, reminded us. It involves the planting and using of bugs without the agreement or acquiescence of the owner or occupier of a property. It is about as far as you could go in breaking the rule that an Englishman's home is his castle. It is doing everything that we should well understand in a spy novel were it being done in premises in Moscow or in relation to international spying. To do it in pursuit of what is laughably called "serious crime" in the very wide definition that we have debated in relation to Clause 1 is Orwellian.
The wording that the Minister used is also Orwellian. She did not say that the safeguards are being taken away; she said the safeguard needs to be adjusted. Adjusted, my Lords! She did not say that the police have no statutory authority to do the bugging; she said the authority exists under "administrative arrangements". That was confirmed by the noble Lord, Lord Knights. In other words, there is no statutory power. A chief officer of police can do what he likes and it is called "administrative arrangements". It is all right so long as those doing the bugging are not caught. If they were caught they could be charged with the civil offence of trespass.
The situation is Orwellian because the Minister says she can assure the House that there are no powers that the police do not have. Those were her very words. But it is quite clear that there are powers that are available to the Security Service. The Minister boasted about those powers. She said that the purpose of the Bill is to bring the whole range of skills and powers of the Security Service to the pursuit of serious and organised crime. And these are being applied in conditions in this country in pursuit of serious crime where the police themselves have no statutory authority.
We land up with the worst of all possible worlds on warrants. We land up with an extension of powers for the Security Service, not because they are new powers for the service but because they are applied for the first time to the people of this country. We land up with inconsistent powers as between police and the Security Service in pursuit of the same objective. We have a different trigger for the exercise of these powers. The trigger we have chosen is not an extension of the judicial trigger--the need to apply to a magistrate or a judge--but an extension of the trigger of the executive power, in other words, the Home Secretary or anybody to whom he chooses to delegate these responsibilities. There is no
I cannot imagine a situation under which there has been a greater extension of the powers of the state against the powers of the individual--and this by a Conservative Government--being done in such a way that it is virtually incomprehensible when the clause is simply read as drafted; namely, as an amendment to previous legislation. Only under questioning has the extent and enormity of the increase in the powers emerged.
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