The Police Bill currently going through Parliament has been introduced by the Government backed by claims that it will assist the Police in the fight against crime and will legalise the 2,000 covert bugging operations which take place every year.At present, the use by the Police of bugging devices is wholly unregulated by statute and is subject only to 1984 Home Office Guidelines.
The Guidelines do not confer legal immunity, and therefore covert entry by the Police into private property to plant bugs is unlawful and could be subject to legal action. By contrast, the security services are regulated by statute and the Home Secretary's prior authority will justify entry, effectively granting legal immunity.
The Bill has attracted almost universal criticism from civil libertarian groups, the judiciary and lawyers. It would allow Chief Constables (or subordinates) to authorise the legal use of bugs in cases of serious crime, with no control by the Courts or Ministers.
The only provision for any kind of check would be a Commissioner to review such activities after the event, and investigate any complaints. But the Commissioner's decision could not be appealed or questioned in Court.
Thankfully, during its passage through the House of Lords, the Government suffered a defeat when Peers, backed by Labour and Liberal Democrats, forced an amendment to ensure that prior authorisation for intrusive surveillance operations be obtained either from senior judges, serving as security Commissioners, or alternatively circuit judges. This leaves the Bill in disarray, and it remains to be seen what action the Government will now take.
In other ways the Bill remains unamended and continues to cause serious concern. The police will still have grounds for the wide ranging use of bugs in the investigation of serious crime, albeit with prior judicial approval.
A serious crime is defined as an offence which "involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose". This definition is unacceptably wide and vague.
Although commentators focussed on the effect on mass public protests concerning live animal exports or road building projects, the implications for trade union activities are clear: industrial action, and other forms of protest planned by trade unions and their members, could give rise to a reason under the Bill for the police to seek to bug individual trade unionists and officials, and also their union and lawyer's offices.
It is alarming that there are no exceptions at all under the Bill for journalists or for those in professional practice such as lawyers (and indeed doctors). This essentially erodes the vitally important principle of professional privilege, whereby those consulting lawyers can be confident that what passes between them and their professional advisors is confidential.
Trade unions seeking legal advice about a proposed course of legal or industrial action could find those consultations the subject of Police surveillance and interference, so infringing the union's ability to organise its activities effectively.
Whilst prior judicial approval may act as some constraint on the police, the right to consult lawyers in confidence should be preserved. At the very least, the use of bugs should be limited to investigating the activities of the solicitor who is suspected of knowingly participating in criminal activity, rather than lawyers simply engaging in the day to day activity of giving legal advice.
Trade union activities should be exempt. It is to be hoped that further amendments will be made to the Bill before it finds its way to the Statute Book.