Leading Article: Police surveillance powers must be watched

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The Independent Online
On this page yesterday we carried a letter from five chief constables and the commissioner of the City of London Police. It made an impressive and very nearly persuasive read. The letter was a rebuttal of criticism of the Police Bill currently before the House of Lords, criticism that has grown in clamour and which has presented us with the odd - and suspicious - spectacle of the leading Tory newspapers each taking the same, antagonistic line. The sight of, for example, the Daily Mail and Telegraph uniting in defence of civil liberty is at least diverting. Strangely, though, they are largely wrong in championing this particular attack on the Home Secretary, Michael Howard. There are positive arguments for the codification and statutory expression of police surveillance powers contained in the Bill - but there are also compelling arguments for at least two substantive amendments to the proposed legislation.

Like a work of art, a parliamentary bill is comprehensible only by reference to its authorship, and this requires us to inspect the motives of Mr Howard. The frequency of his appearance in these columns - in the dock - does not mean we are unable to appreciate his political skill, nor his capacity, manifest to some extent in the Police Bill, to respond to the demands of effective crime-fighting in an increasingly technological world. The Home Secretaryship is a difficult job. Its occupant has regularly to respond to crises - jail breaks, for instance - leaving little leisure for ministerial gamesmanship. Yet here we see Mr Howard well-positioned for a strike at the Tory Party succession, albeit from the rung just below the top. The price the public has had to pay has not, however, been small. Too often during his tenure of the Home Office, detailed drafting and careful law-making have been sacrificed to the need to make Mr Howard look good to the Tory backwoods and party conclaves. Prisons and sentencing policy have suffered as a result.

Is the Police Bill another of those hopefully short-lived monuments to Mr Howard's ambition; another policy that substitutes the symbolism of "toughness" for concern about the liberty of the citizen? Not quite. Mr Howard is right to argue that the existing powers of the police to obtain evidence "covertly" or by means of "intrusive surveillance" are now unsatisfactorily specified - and Jack Straw, his Labour opposition number, is right to agree that a new law is needed. Some of this surveillance is at present authorised by chief police officers; for some the police rely on common law powers; meanwhile both the Security Service and Customs and Excise exercise similar powers under quite different legislative and administrative arrangements.

Judging the most controversial aspect of the Bill - allowing chief constables to authorise "intrusive surveillance" - must rest on a prior assessment of the role and the behaviour of Britain's police. The past two decades have seen rapid improvement in the education, calibre and, to coin a phrase, constitutional reliability of chief constables. It is even conceivable that some of them will vote Labour. Television scriptwriters are good if not infallible guides to the public reputation of chief police officers, but if programmes such as The Chief are any guide, it is high.

It is those chief officers who will be given a formal role, ex ante, in approving police action that could involve breaking into private premises and planting surveillance equipment. Ex post, a new commissioner would have the power to investigate complaints. Are they to be trusted? The general answer must be yes. But that is a different question from whether the formalisation of police powers of entry and surveillance will serve to combat crime. Here Mr Howard - and Labour, to date - have failed to ask it. A principal test for any extension of police power must be its impact on the volume of criminal behaviour, something difficult to measure, admittedly, and not always captured by numbers of arrests, prosecutions and convictions. The Police Bill is, ostensibly, geared to the way criminal conspirators can use technology and the ease of movement of men and money across borders - what the lay public understand by organised crime. But "serious crime" as defined in the Bill turns out to be a catch-all which would include (the authors of yesterday's letter seemed to confirm this) conspiring to climb trees and obstruct the construction of the Newbury bypass.

It is at this point that Jack Straw should draw up a set of positive and friendly amendments to the Bill, designed to make it work as a piece of crime-fighting legislation. "Serious crime" must be more tightly defined. It must not include actions which might lead to some breach of public order in the pursuit of political or environmental campaigning. Lawyers - a group not without self-interest - have raised the question of the inviolability of solicitors' offices to police surveillance. The very idea that there might be solicitors hand- in-glove with fraudsters and thieves! There is, indeed, a point of principle here to do with the balance of forces within the criminal justice system. Lawyers' premises do deserve some protection: forcing the police to obtain prior permission from a judge before acting would be a useful check. There may be other categories of premises that could be treated in a similar way.

The Police Bill has generated a lot of comment, some of it peculiarly intemperate. Jack Straw has been attacked in terms that suggest he ought, with a jerk of his knee, to oppose anything and everything proposed by Mr Howard. In fact Mr Straw should set about challenging Mr Howard to make the Bill watertight, without compromising its purpose.

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