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Lord Cuckney: My Lords, I apologise for wishing to speak on the Security Service Bill and the amendments at this stage, having unfortunately not been able to be present during the Second Reading or all of the Committee stage. However, I would like to explain briefly why I do not support the amendments. It is for a fundamental and basic reason--that is, that we should preserve, in as many respects as possible, the separateness between the Security Service and the law enforcement agencies.
Their respective roles are quite different and distinct. As noble Lords know, the Security Service has no executive powers; it is an intelligence organisation and, while having a statutory identity now, it is essentially a secret service. If one reflects on the nature of its work, countering terrorism, subversion and espionage, it must remain a secret service. The noble Lord, Lord Knights,
Although it has been decided that at the invitation, and under the operational control, of the National Criminal Intelligence Service the Security Service may, if so invited, provide support in fighting serious crime, I do not see that as justifying changes in accountability in view of the elaborate arrangements which already exist. The Security Service has developed certain operational techniques, especially in dealing with terrorism and espionage, which could have an application--again, if so requested by the police--in fighting serious crime. It is worth remembering that many terrorist organisations engage in serious crime and organised crime for fundraising purposes.
As to introducing a new judicial factor with regard to the granting of warrants, my understanding is that the present exercise of ministerial judgment and responsibility is based on intelligence factors, not often involving issues that call for a judicial standard of proof. Intelligence factors have a relevance to the operational techniques which might be used when fighting serious crime. The judicial element which is introduced through the oversight arrangements can, in effect, validate Ministers' judgments.
Finally, I think that the most effective way of limiting the role of the Security Service in this one area and the best way of avoiding the turf wars which can always develop is to maintain strictly the separateness of the two services.
Lord Knights: My Lords, I return again to the point that I made a few moments ago. We are now debating not simply the powers that may be given to the security services, but the powers which will be sought for the police service later this year. I think that we need to keep that in mind when we decide what to do with regard to this amendment.
What worries me about the amendment is that it seems to suggest that the security services can move in one way for part of their work but in another way when they are engaged in the criminal field. However, in many cases there is very little difference between the two. What is the difference between terrorism and espionage and organised or serious crime? There is nothing more organised than the terrorism which is conducted by the IRA. Where do we draw the line? If we are to deal with such organisations and with some of the organised crime groupings which we have been told are a tremendous threat to this country--no one has denied that--secrecy has to play a part. It has to be at the heart of some of the investigative work that is carried out.
The security services have the power or the authority now to get a warrant to intrude into premises to bug them--there is no other word for it--when dealing with terrorism. It seems to me that there is very little difference, if any, between dealing with that and dealing with other crimes involving the same type of activity, and explosives and firearms which may not normally be regarded as "terrorism". My dictionary tells me that "terrorism" is,
I indicated previously that to my knowledge, which is now a little out of date, the police without any judicial authority occasionally intrude and place bugs when dealing with terrorism. After all, it is only 18 months since dealing with terrorism in the form of the IRA was taken away from the Metropolitan Police. While they were responsible for investigating such crimes in this country, they would obviously undertake the same activities as the Security Service.
I also wonder whether the special skills of investigation are not being played up a little too much with regard to the Security Service. Such investigation involves the bugging of premises in order to obtain information and intelligence. Senior police officers who have been involved in such activities over the years must have the same kind of skills and need the same kind of authority to obtain the information and intelligence on which they are to base their actions. What is the case for having differing methods of obtaining intrusive warrants according to the function which the Security Service is undertaking? If it is not appropriate for members of that service to have such a warrant when dealing with serious crime, how can it be any different when they are dealing with what is regarded not as serious crime but as something else; namely, espionage or terrorism? I really do not see how one can discriminate or differentiate between the two activities.
My feeling at the moment is to oppose the amendment so that the security services do not have to decide whether they are dealing with one kind of activity rather than another and, on the basis of that, where to go for a warrant. I would much prefer to give them the same powers in connection with serious crime as they currently have for what is not at the moment said to be serious crime but something else, and to leave the whole question of intrusive warrants and whether we are or are not going too far until we reach that matter later.
Lord Harris of Greenwich: My Lords, I apologise for not having been present throughout the whole debate. Given that there is now a great deal of activity outside the House concerning the extraordinary affair of the handling of the Asylum and Immigration Bill, to
The matter which concerns me today is exactly that which concerned me on the last occasion we considered this Bill. It was touched on by the noble Lord, Lord Knights. I refer to the question of how we can possibly maintain a system in which the Security Service is given the powers which are set out in the Bill and the police, who will be dealing with exactly the same issues in, arguably, the same investigation, operate under non-statutory Home Office guidelines. Frankly, it makes no sense whatever.
The Minister's answer is to say, "There is nothing to worry about. We shall be looking into this and introducing legislation in the next Session of Parliament", but that is no answer at all. We are talking about a government who have at the most another seven or eight months in office. Of course, they may be re-elected, but the next Session will be exceptionally short. There is therefore no certainty that any legislation introduced by the Government--that is, assuming that such legislation is introduced at all--will be enacted before the end of this Parliament. The serious issues which have been raised by the noble and learned Lord are simply not addressed adequately by the arguments which have so far been adduced by the Minister.
As far as I am concerned, the central issue is that of separateness between the treatment of the Security Service which, however unsatisfactory this clause is, will at least be acting under some form of statutory provision, and that of the police, which will not be in that position.
To repeat the point that I made on the last occasion, the noble Baroness will be aware that the Association of Chief Police Officers has repeatedly put this matter to the Home Office and has been fobbed off with the explanation that the Government will legislate as soon as they have an opportunity to do so. However, for the reasons I have given I do not believe that that is an answer because of the limited period of the current Parliament. The noble Lord, Lord Cuckney, who has experience in this area stated, by implication, that it was necessary to avoid turf wars between the police and the Security Service. I agree with him. In the past there have been such turf wars between the police and Customs and Excise in the course of drugs investigations. That is something to be avoided at very nearly all cost. But for the reasons I have indicated I do not believe that it is desirable to maintain this degree of separation. I believe that in an arguably short period of time substantial tensions will arise between the police and Security Service because of the different statutory frameworks under which they will operate. The Security Service will at least have a clearly defined statutory position but the police will have nothing, except non-mandatory Home Office guidelines. That causes me serious disquiet and, rather more importantly, serious disquiet to a large number of senior police officers.
Baroness Blatch: My Lords, there is no doubt that this is an important issue. The amendments seek to introduce a new role for the judiciary in authorising property warrants in pursuance of the Security Service's new serious crime function. I am grateful for the interventions of my noble friend Lord Cuckney and the noble Lord, Lord Knights. Of all noble Lords in this House, they speak with direct experience of these matters.
The involvement of the judiciary at this stage of an operation by the Security Service when the primary focus is likely to be the gathering of intelligence is a novel and, I suggest, an unnecessary departure from the existing arrangements. The present system works well, safeguarding the public interest while meeting the needs of the Security Service. The amendment of the noble Lord, Lord Rodgers would introduce an even more novel concept, namely the idea of a system of dual authorisation involving both the Secretary of Sate and a High Court judge under which the Secretary of State would not be allowed to take a decision until he had the consent of a member of the judiciary.
The safeguards surrounding the issue of property warrants already incorporate a role for a senior member of the judiciary. The Security Service Act 1989 made provision for the appointment of the Security Service commissioner, an office which is currently held by Lord Justice Stuart-Smith. The duties of the commissioner include overseeing the exercise of the Secretary of State's power to issue property warrants and investigating complaints relating to the interference with property. If he finds that a warrant has been improperly issued or renewed he can order the warrant to be quashed and compensation to be paid. This is a very important safeguard. I suggest that this is a more appropriate avenue for judicial oversight than the prior approval of individual warrant applications which is envisaged by these amendments. There would also be practical difficulties. I will deal first with the system proposed by the noble Lord, Lord McIntosh, whereby ministerial authorisation would be replaced by judicial authorisation for property warrants under the Security Service's new serious crime function. It is quite feasible that the service could be investigating a drug trafficking operation which was being used to fund terrorist activity. This blurring of the functions was touched upon by the noble Lord, Lord Knights. This would be relevant to the Security Service's new serious crime function and its existing national security responsibilities. In these circumstances, although the service would know under which of its statutory functions the operation had been initiated there could be some property warrants which had been authorised by the Secretary of State and some authorised by a High Court judge. This is unsatisfactory. It is important that there should be a single authority who is responsible for granting the warrants required for a single operation.
Turning to the system proposed by the noble Lord, Lord Rodgers, there would be a wasteful duplication of effort if the High Court judge and the Secretary of State both carried out identical functions of approving warrant applications. This could have the effect of reducing the
It is not just the practical problems about which we are concerned. There must also be grave doubts about whether the authorisation of this type of warrant is an appropriate function for the judiciary. There is an important distinction between property warrants now issued under the Intelligence Services Act and search warrants issued under the Police and Criminal Evidence Act, which are authorised by the judiciary. Search warrants are overt and are normally disclosed to the subject of the warrant at the time of their execution. Property warrants, by contrast, are covert and will not be disclosed at the time of their execution. The only way in which the subject of a warrant could become aware of its existence would be in the course of any subsequent court proceedings. Given that property warrants will often be issued for the purposes of intelligence gathering rather than the collection of evidence, there is a good chance that these warrants will never be disclosed to their subject. This would be a new departure for the judiciary. Rather than the openness and independence of the normal judicial process, judges would be involved in the covert development of operations. This may be seen as a threat to their impartiality by placing them firmly in the law enforcement camp.
If the desire to involve the judiciary stems from a wish to see independent oversight, I suggest that the present system under which the commissioner applies the principles of judicial review to determine whether the Secretary of State has acted properly in granting a warrant is preferable. The commissioner, who must hold or have held high judicial office, is in a position to take a common view across all property warrants, whereas if all warrants are to be approved by a High Court judge prior to consideration by the Secretary of State the duties will have to be shared between a group of judges.
I listened carefully to the observations of the noble and learned Lord, Lord Browne-Wilkinson. But it is important not to undervalue the significance of the requirement for the warrant to be authorised by the Secretary of State. It is a major hurdle that warrant applications should have to be so authorised. As the legislation presently stands, the personal authorisation of the Secretary of State is required in every case. Even in urgent cases where the Secretary of State is unavailable to sign the warrant personally, it is the practice for the authorisation to be given by the Secretary of State over the telephone to a senior official who completes the signing of the warrant under his authorisation.
The Secretary of State is an entirely reliable and trustworthy authority to grant warrants, particularly when the existing legislation provides a set of additional safeguards. In the commissioner's most recent annual report published earlier this month Lord Justice Stuart-Smith confirmed that he was satisfied that the Secretaries of State had properly exercised their powers under the Act. Furthermore, this reliance on the
I should like to run quickly through the other safeguards governing the issue of property warrants. I have already referred to the requirement for warrants to be authorised by the Secretary of State and the oversight role of the commissioner. The legislation also specifies that the action to be taken will result in the service obtaining information which cannot reasonably be obtained by other means and is likely to be of substantial value in assisting the service to carry out its functions. The Secretary of State must also be satisfied that arrangements are in place to control and restrict the disclosure of information gained in this manner.
In summary, we have a system for authorising those property warrants, which is carefully regulated and surrounded by an appropriate set of safeguards. The system has worked well for the authorisation of warrants in respect of the security services' existing functions. The requirement for warrant applications to be authorised personally by the Secretary of State is an important and effective safeguard which complements the accountability arrangements for the Security Service.
In addition to all of that, there are well-established arrangements for supplying independent judicial oversight of the Secretary of State's decisions, in a manner akin to the process of judicial review, through the role of the commissioner. Those arrangements are robust. They take full account of the intrusiveness of the powers we are discussing. They would not be enhanced by either of the amendments, and therefore I hope that the House will not accept them.
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