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Telephone Calls (Interception)

Volume 982: debated on Tuesday 1 April 1980

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On a point of order, Mr. Speaker. The document on telephone tapping applies specifically to Great Britain since its title is"The Interception of Communications in Great Britain." May we please have a clear statement from the Government, before the Home Secretary makes his statement, that any legislation will apply to the whole of the United Kingdom so that the present system of Army telephone tapping at Churchill House, Belfast will be continued only under supervision, as it is in the rest of the United Kingdom?

I suggest that the hon. Member for Down, North (Mr. Kilfedder) awaits the statement that the Home Secretary is about to make.

With permission, Mr. Speaker, I shall make a statement on the interception of communications.

The House will recall that, following the Vice-Chancellor's judgment in Malone v Commissioner of Police of the Metropolis, my predecessor, the right hon. Member for Leeds, South (Mr. Rees), informed the House on 8 March 1979 that he proposed to put in hand a study of the implications of that judgment. On 13 June 1979 I told the House that I had directed that this study should be continued to its completion and would inform the House of my conclusions in due course.

Since that study began, a number of questions have been raised about the practice and extent of interception. The study has been completed. The Government have also made a thorough review of the procedures and conditions which, since the report of the Committee of Privy Councillors under the chairmanship of Lord Birkett in 1957, have been the basis of our arrangements in these matters. Over the years there have been minor changes of practice; but in all essentials the principles and procedures laid down by Birkett continue to be observed, including the fact that interception takes place only on the personal warrant of the Secretary of State. I have today published a Command Paper which sets out the Birkett principles and procedures as they operate today. It covers, as the Birkett report did, interception on behalf of the police, Her Majesty's Customs and Excise and the security service.

Information about interception in Northern Ireland is excluded from the Command Paper because the need to be able to combat terrorism there makes it undesirable to disclose any details. However, I can assure the House that the procedures, conditions and safeguards set out in the Command Paper are observed in Northern Ireland, subject only to the overriding requirements for dealing with terrorism. In particular, the personal authorisation of the Secretary of State for Northern Ireland has to be obtained for each individual interception.

The interception of communications, whether by the opening and reading of letters or by recording and listening to telephone communications, is an interference with the freedom of the individual in a democratic society. None the less, when carried out by the properly constituted authorities it is justified if its aims and consequences help to protect the law-abiding citizen from the threats of crime and violence and the fabric of democracy from the menaces of espionage, terrorism and subversion.

Allegations have been made that interception is now practised on a vastly wider scale than at the time of the Birkett inquiry. I hope that the figures quoted in the Command Paper, which bring up to date those in the Birkett report, will provide reassurance on this score. There has been a modest overall increase in the total number of warrants signed and a change in the balance between telephone and letter interception which reflects the greatly increased use of the telephone since 1957. But, given the very considerable growth in serious crime and in particular the development of the terrorist threat during the intervening years, I believe that the figures demonstrate that the use of interception continues to be tightly controlled.

In his judgment in Malone v Commissioner of Police of the Metropolis, the Vice-Chancellor, Sir Robert Megarry, found that interception undertaken on behalf of the police under the warrant of the Secretary of State was not illegal There is, therefore, no need for legislation to make duly authorised interception lawful. He drew attention to the fact that the restrictions and safeguards under which interception is conducted are, in this country, matters of administrative practice and not, as in some other countries, of statute. He went on to suggest that it was for consideration whether the procedures and conditions governing the use of interception should be embodied in legislation.

In their review, the Government have considered that suggestion with great care. The interception of communications is, by definition, a practice that depends for its effectiveness and value upon being carried out in secret and cannot, therefore, be subject to the normal processes of parliamentary control. Its acceptability in a democratic society depends on its being subject to ministerial control and on the readiness of the public and their representatives in Parliament to repose their trust in the Ministers concerned to exercise that control responsibly and with a right sense of balance between the value of interception as a means of protecting order and security and the threat which it may present to the liberty of the subject.

Within the necessary limits of secrecy, I and my right hon. Friends who are concerned are responsible to Parliament for our stewardship in this sphere. There would be no more sense in making such secret matters justiciable than there would be in my being obliged to reveal them in the House. If the power to intercept were to be regulated by statute, the courts would have power to inquire into the matter and to do so, if not publicly, at least in the presence of the complainant. This must surely limit the use of interception as a tool of investigation. The Government have come to the clear conclusion that the procedures, conditions and safeguards described in the Command Paper ensure strict control of interception by Ministers, are a good and sufficient protection for the liberty of the subject, and would not be made significantly more effective for that purpose by being embodied in legislation. The Government have accordingly decided not to introduce legislation on these matters.

The Government have, however, decided that it would be desirable if there were a continuous independent check that interception was being carried out in accordance with the established purposes and procedures. We propose to invite a senior member of the judiciary to carry out this task. His terms of reference will be
"To review on a continuing basis the purposes, procedures, conditions and safeguards governing the interception of communications on behalf of the police, H.M. Customs and Excise and the security service as set out in Cmnd Paper 7873; and to report to the Prime Minister."
He will have the right of access to papers and the right to request additional information from the Departments and organisations concerned. For the purpose of his first report, which will be published, he will examine all the arrangements set out in Cmnd. 7873. His subsequent reports on the detailed operation of the arrangements will not be published, but Parliament will be informed of any findings of a general nature and of any changes that are made in the arrangements.

The Government believe that these standing arrangements for monitoring the operation and control of interception will be a valuable additional assurance to Parliament and the public that the powers of interception are exercised strictly, sparingly and responsibly.

First, I give a firm welcome to the publication of the White Paper. The facts contained in it are those which I wish I could have used in the face of the published articles of recent months. Is the Home Secretary aware in particular that I am glad to see the figures on the incidence of telephone tapping and the clear statement on procedures, conditions and safeguards that are followed? I note that continuous checks are carried out by the Home Secretary personally. I confirm that they were carried out in the past and I accept that they are carried out now.

Concerning the inquiry for which I asked, is the right hon. Gentleman aware that the real question is whether another Birkett-type inquiry is necessary before the start of the continuous review suggested in the White Paper? In any event, I welcome the proposal for a continuous check on
"the purposes, procedures, conditions and safeguards governing the interception of communications."
To help me—and also to assist the House—in my evaluation of whether a Birkett-type inquiry is necessary, will the right hon. Gentleman expand on the meaning of the word "purpose"? It is a new word in the light of previous White Papers. Taken at face value, it would seem to be an important part of an inquiry. In this respect, may I indicate to the right hon. Gentleman that the major reason why I wanted an inquiry was to reconsider the reasons why interception was carried out? It was acceptable 20 years ago to say that interception was necessary for the three major purposes. The purposes of interception, therefore, are of great importance.

May I express the hope that, however the matter is dealt with, the allegations about unauthorised tapping will be cleared up? Unauthorised tapping has given rise to the allegations. I notice that the first report will be published and that in subsequent reports Parliament will be informed of any findings of a general nature and of any changes that are made. I regard that as important.

The right hon. Gentleman said as much, but I use parliamentary form when I ask him whether he is aware that I always felt, and still feel, that trust in a Home Secretary is vital in carrying out his duties. No matter what legislation is proposed and no matter what form White Papers take, unless there is complete trust—and it is a two-way process—no procedures will work. I know what I did and I am prepared to accept that the right hon. Gentleman carries out the firm procedures that I inherited and with which I dealt on a daily basis in all parts of the country. Nevertheless, from time to time there is need for the Executive to be accountable to Parliament on the basis of a suitable inquiry. However, accountability should take into account the secrecy that is vital, particularly in the context of terrorism.

The hon. Member for Down, North (Mr. Kilfedder) should be assured that the White Paper clearly states that the procedures are being carried out in Northern Ireland. I believe that it would be the height of folly to give numbers of any kind about Northern Ireland—much as I am assured of them—because terrorism is established in Northern Ire- land in a way that we do not experience in the rest of the United Kingdom.

I have not made up my mind on the need for legislation. I shall read the White Paper carefully and I hope that we shall have a debate on the whole matter as a first step in the process of accountability. I welcome the White Paper as a start.

I am grateful to the hon. Member for Leeds, South (Mr. Rees). When we were in Opposition, we certainly trusted the way in which he carried out these duties. I have sought to carry them out in exactly the same way as he and my predecessors did, and I hope that I can be seen to have done so.

When I was questioned previously, I felt that it was right to update the Birkett inquiry and to publish the figure in a Command Paper. I was asked to do that by many hon. Members on both sides of the House in order to make the position clear. I hope that the House will accept that we have done that. It is important that we did that, because the updating of the Birkett inquiry sets out as fully as any inquiry could do the policy and the practice of interception.

I am equally grateful to the right hon. Gentleman for his welcome for the monitoring arrangements. I believe that the monitoring role, which will be a continuing one, is valuable and that it will provide, in the long term, a more effective check than any single inquiry. It is important to point out, in the context of the allegations of unauthorised interception, that section 58(1) of the Post Office Act 1953 and other provisions mentioned in schedule 5 to the Post Office Act 1969 make illegal certain unauthorised interferences with communications. The only way in which they become legal is on the warrant of the Secretary of State. That is an important safeguard.

As for the right hon. Gentleman's wish for a debate, I feel particularly responsible to the House for the difficult task which I have to perform in this case. Therefore, subject to what my right hon. Friend the Chancellor of the Duchy of Lancaster may say, if the House wishes to question me further—or to subject me to its arguments—I am, of course, only too ready for that to be done. That is my duty to the House and I am ready to accept it.

In considering these matters further, will my right hon. Friend never forget that his first duty is the protection of this country from crime, terrorism and subversion? Will he also bear in mind that upon his vigilance depends the maintenance of freedom under the law?

Will my right hon. Friend be assured that just as we, when the right hon. Member for Leeds, South (Mr. Rees) was Home Secretary, had the utmost confidence in the way in which the right hon. Gentleman exercised his powers in these matters, we have confidence in my right hon. Friend and we look to other right hon. and hon. Gentlemen to have similar confidence? Will my right hon. Friend be assured that there will be a general welcome for the proposal that the judiciary and a high-ranking judicial figure will be associated with the protection of the freedom of Her Majesty's subjects?

I thank my hon. and learned Friend. It is, of course, true that interception plays an extremely important part in the protection of our citizens from terrorism. It also plays a particularly important part in dealing with sophisticated crime as it performs an important role in dealing with drug smuggling. On all these fronts I know—and it has been previously expressed to me by the House—that the whole House is behind the principle of interception for these particular purposes.

I am conscious that I have to balance that role against the liberty of the subject and the vital importance which I believe that the House attaches—as I do—to that liberty. My purpose is to establish the right balance between these two aspects, and I am more than ready to be answerable to the House in carrying out this duty.

Order. I appeal to hon. Members to be as brief as possible with questions. A large number of right hon. and hon. Members wish to take part in the final day's debate on the Budget. The time we are now spending comes out of the time allocated to the Budget debate.

Will the Home Secretary tell the House whether any Member of Parliament has been the subject of an interception order? Will he consider subdividing the number of interceptions into those instigated by the police, those by Customs and Excise officials and those by the security forces?

Thirdly, will he explain whether the number of interception orders listed in the White Paper are cumulative—that is to say, those currently in force—or is the number given simply that of the new orders that have been published?

Fourthly, will he accept that my right hon. and hon. Friends and I welcome the senior judiciary intervention? Would it not be wise either to publish the name of the person whom he has appointed or to consider making it three officers of the judiciary?

With regard to the hon. Gentleman's last point, I thought it courteous to the House and to the Opposition to put forward this proposal and then to decide on who would be appropriate. I believe that is still right, and I would argue in support of that.

The hon. Gentleman also asked about Members of Parliament. I refer him to the replies that were given by the right hon. Member for Huyton (Sir H. Wilson) in 1966, which have subsequently been repeated by all Prime Ministers, including my right hon. Friend in February of this year. In view of the importance of the subject, I hope that I shall be excused if I read out the relevant passages. The right hon. Member for Huyton said:
"Nevertheless, on this one occasion, and exceptionally because these Questions on the Order Paper may be thought to touch the rights and privileges of this House, I feel it right to inform the House that there is no tapping of the telephones of hon. Members, nor has there been since this Government came into office…
There was to be no tapping of the telephones of Members of Parliament. That was our decision and that is our policy. But if there was any development of a kind which required a change in the general policy, I would, at such moment as seemed compatible with the security of the country, on my own initiative make a statement in the House about it"—[Official Report, 17 November 1966 Vol. 736, c. 635–9.]
I heard one hon. Gentleman say that he did not believe that. If he does not believe it, he will have to disbelieve the words of all Prime Ministers, from both sides of the House, since that date. That would be an unreasonable thing to do.

As we now know that even the Prime Minister of the day was kept in ignorance of the activities and confession of Anthony Blunt, how can the right hon. Gentleman guarantee that he, his predecessors and his successors are kept fully in the picture about the degree of interception?

I can guarantee that I am in the fullest touch with the procedures, in that any interception can take place only if I have signed a warrant. I cannot sign a warrant unless I am given the facts, and I certainly would not do so without the facts, given my responsibility to the House. That is why I know that I am kept informed.

I thank my right hon. Friend for the seriousness and concern which he has shown on this worrying subject. I am sure that he will agree with me that there never has been a Parliament which has welcomed interception, but we recognise that interception is necessary in the very special circumstances relating to the protection of citizens.

However, my right hon. Friend said something this afternoon which must give rise to concern. He said that there had been a moderate overall increase in the use of interception. Will he confirm the assurance which he gave earlier that when he grants a personal warrant it will be just that and that in no way will it be a case of something slipping through the Department on a recommendation of his officials, on a say-so from him or on anything less than a very close personal examination?

I am grateful to my hon. Friend for what he said about the way in which I approach this matter. When I said that there had been a modest overall increase, I was referring to the figures given in the White Paper. I think it will be agreed that, in view of the considerable increase in terrorism, and in sophisticated crime of all sorts, during the period under review, the increase is very modest.

My hon. Friend perhaps has come to know me well enough over the years to be pretty clear that I am unlikely to put my signature to any document which I have nor studied extremely carefully, nor do I think that I would have lived as long in politics or in life if I had been prepared to put my signature to docu- ments without taking a great deal of trouble to see what they contained.

Is the right hon. Gentleman aware that there is a widespread view that the balance between the security of the State and the liberties of the individual should not be vested in individuals but should be brought before Parliament for proper legislation and proper accountability to the House—not on operational details but on the principles upon which such interception occurs? Does not he also agree that, in rejecting the view of the judge that there should be legislation, he is rejecting the rights of Parliament to debate the proper safeguards and is denying the House the right to receive proper reports from those responsible? In the light of the great concern that there is about this matter, not just in this country but all over the world, will he press urgently for a proper debate in which those views can be properly expressed?

I appreciate the right hon. Gentleman's view about legislation, but for the reasons set out in my statement I do not agree about the value of legislation in this case. However, I understand the right hon. Gentleman's argument.

As for a debate, I think that I made the position perfectly clear in answer to the right hon. Member for Leeds, South (Mr. Rees). Because of my peculiar responsibility in the circumstances, which I believe to be right, although the right hon. Gentleman does not, it is even more important for me to be ready to subject myself to the arguments of the House. Of course, I am prepared to do that.

Will my right hon. Friend revert to the key word that was used by the right hon. Member for Leeds, South (Mr. Rees)—"trust"? In a matter which cannot be justiciable and cannot be legislated upon, is not it right for this House to look to the Home Secretary of the day, whom it can call to account, as the person to trust in establishing the right balance between the undoubted rights of the individual and his freedom to personal privacy and the equal right of the State to secure itself against subversion, espionage and terror?

I am grateful to my hon. Friend. Of course, in the final event, this is a matter which must be decided upon a narrow judgment. I believe that in the long run the House would very much regret it if it removed the responsibility from a Minister and gave it to people outside who were not responsible to the House. I believe that the House would regret such a decision. That is why I favour maintaining the present arrangements, and I accept the responsibility which that places on all the Ministers concerned.

Is it not a fact that the right hon. Gentleman's Department has laboured on this matter for a year and has produced a mouse, as the White Paper tells us nothing that we did not know already? Is it right that the judge's assertion that there should be legislation should be turned aside on the basis that this is a matter which can hardly be justiciable? For example, most of the signatories to the European convention have legislation, and, although application can be made to a magistrate for a search warrant to search the premises of terrorists, apparently we cannot trust judges to issue a warrant in relation to telephone tapping.

The hon. Gentleman is entitled to his view. I think that it is a little ungenerous, because a few months ago, when I was asked to produce these figures and to set out the procedures, I said that I would consider the matter and come back to the House as soon as possible with the White Paper. To have done that within a few months is not unreasonable, in my view. In fact, I believe that it meets the desire of the House.

The hon. Gentleman said that my Department had laboured for a long time and had produced a mouse. I must take the responsibility. The Department has given all the facts to me, but I believe that a new Government, particularly following the various arguments that were put forward in the House, are entitled to weigh up all the considerations and to take the decisions. I take full responsibility for that, and I do not apologise for it. I believe that I have come forward pretty quickly with my proposals.

I turn to the question of the law. The hon. Gentleman is expert in the law, and I am sure that he will be the first to appreciate that our law is different from the laws of the other countries which he mentioned. I still believe that we are right to proceed in the way I have outlined. I honestly believe that legislation would risk undermining the value of interception to the public at large, without offering more safeguards than we have at present. The hon. Gentleman may not agree with me, but I believe that it is right to have the responsibility firmly within the House. That is my judgment. That is why we have proceeded in this way.

Will my right hon. Friend accept that there will be widespread reassurance because of the contents of his White Paper and the safeguards that he has reaffirmed he intends to observe? Does he not think that it is important to draw to the attention of the House and the public the fact that intervention has played an important role not only in conserving a considerable amount of public revenue but in the interception of over 50 per cent. of cases involving the seizure of heroin and cocaine?

The vast majority of interceptions by Customs and Excise have been to do with drugs. It is estimated that in 1978 about 62 per cent. of the seizures of heroin and about 56 per cent. of the seizures of cocaine were due to interceptions, and there are results of a similar substantial nature for 1979. I do not think that anyone can afford to neglect the importance of such seizures to the whole life of the nation.

Order. To be fair to the House, I will call four more hon. Members from either side.

Does the Home Secretary accept that in confirming the Birkett principles his view may or may not be right, but that it would have been greatly strengthened if he had set up an independent inquiry at the highest level to support or at least to examine the issues again? The Birkett principles have operated for 23 years. Does he also accept that the historical circumstances which gave rise to the establishment of these principles have considerably changed and that it is not adequate wholly to have to rely upon the internal inquiry which he has set up in support of a matter which so deeply touches individual liberty?

I understand the hon. Gentleman's point of view. First, let me say—I think the hon. Gentleman accepts this—that updating the Birkett inquiry in the way the White Paper has done is a valuable step forward. The hon. Gentleman may wish that we had gone further, but I am sure that he will agree that it is an important step forward.

On the point of a further inquiry, what we have proposed is a continuing check—and I must emphasise that it is an independent continuing check. I must also emphasise that the first report made under this procedure will be published to Parliament. Such a continuing check is more valuable and effective in all the circumstances than a single inquiry.

Is my right hon. Friend aware that his statement will be widely welcomed? Would he like to comment on the rumours that have been circulating in past months about the use of this procedure for VAT investigations?

Yes; it is very important to be clear. The Customs and Excise warrants, as will be seen from the very stringent safeguards under which they have to be issued, deal almost entirely with drugs. In so far as they deal with matters other than drugs they would deal only with major frauds, such as setting up a company for the purpose of defrauding the Exchequer of large sums of money. There is no question that such warrants will be used for inquiring into the VAT commitments of legitimate firms.

Will the Home Secretary accept that many of us will find difficulty in accepting the brief White Paper tabled today as a substitute for the thoroughgoing inquiry for which we had hoped? Will he also accept that there is nothing in the White Paper that will shake the growing conviction of a number of people that a system whereby the Government decide whom their agents will listen in on is a basically unsound system? If that is the way in which the Home Secretary intends to proceed, can he at least assure us that the senior judge he is appointing will be enabled to look into the use of electronic bugging by the security services, as at present that does not even require the formality of a warrant?

Under the arrangements that have been put forward the judge would inquire into telephone interceptions as such. That would be his remit in accordance with the terms of reference that I read out. The White Paper, which the hon. Gentleman says is very brief, completely updates what the Birkett inquiry said; therefore, I do not accept his stricture on it.

As regards a further inquiry, I believe that a continuing independent check is more valuable in the long run than a once-for-all inquiry.

On the further point about electronic surveillance, of course surveillance devices of various kinds are used. They are used by the police. But we must be clear that often the police use such devices at the request of individuals to check on offensive, indecent and threatening telephone calls. I should have thought that the House would agree that the use of such techniques for that purpose was important. If such devices are used in such circumstances, or for the investigation of serious crimes, it is a matter for chief officers of police. But when one looks at the way in which these surveillance techniques are used one sees that surely they are justifiable.

Because of the evil terrorist campaign that has been waged in Northern Ireland for the past 10 years or more, it is naturally assumed that a far greater number of telephone tappings will take place in the Province in proportion to the rest of the United Kingdom, but that does not justify the Home Secretary's refusal to give the figures. Is the right hon. Gentleman aware that his refusal to do so, and his refusal to extend judicial monitoring to Ulster, will create greater concern in Northern Ireland, where many believe that phone tapping, conducted by the Army, takes place and extends to those who are not engaged in criminal or terrorist activities? Therefore, I hope that the Home Secretary will reconsider his statement.

At one time the hon. Gentleman was a great critic of myself for lacking in determination on security. I must now retort that I think that the way he is pressing me shows that I am the person who is standing up for the vital operational and security needs of Northern Ireland and not him. I tell him that in perfect honesty, because to follow the course that he has requested would mean that I would be doing harm to the action against terrorists in Northern Ireland. I accept at once that the hon. Gentleman has been as keen as everyone to pursue the terrorists in Northern Ireland, but I say to him—as he once criticised me, I put it back to him quietly—that on this occasion I have some right on my side.

Will the Home Secretary seriously consider the possibility of another Birkett inquiry? He will recollect that Mr. Gordon Walker, as he then was, expressed a serious reservation in the Birkett report, in that he took the view that this exceptional power should be reserved for matters involving counter espionage and the security of the State and did not favour its use for routine police matters or such matters as VAT investigations. In the light of what Mr. Gordon Walker had to say, will the right hon. Gentleman reconsider his position as regards a new Birkett-type inquiry?

If the hon. Gentleman looks at the procedures set out in the White Paper and how they are to be followed, he will see that there is no question of warrants being used for what might be described as routine police matters or routine VAT matters because they are specifically excluded by the strict criteria. I hope that the House will note the strict criteria laid down for the issue of these warrants. I understand the feelings of the hon. Gentleman, but I maintain that the continuous and independent check that we propose is better than a once-for-all inquiry.

After all the recent tumult and shouting on this subject, is it not a great tribute to the responsibility of successive Home Secretaries that the number of interceptions has remained broadly static over the past 10 years, at a time of increasing criminal sophistication? Will the Secretary of State, for the benefit of those who have not yet had the opportunity to read the White Paper, underline the fact that he personally not only signs each warrant, but reviews it and places a time limit on it in the first place?

I am grateful to my hon. Friend. Yes, I can give an absolute assurance that the Home Secretary not only signs the first individual warrant but also reviews each one, as set out plainly in paragraph 11 of the White Paper. He must also agree to the renewal of any warrant in accordance with what is set out in that paragraph.

Will the Home Secretary, at this late stage, consider broadening the terms of reference? Is he aware that there is far more bugging and tapping by commercial individuals and organisations than is referred to in the report? We must realise that a tap is a tap and a bug is a bug, whether it is used by the security services or by private investigators. We must root out such practices as well as establish controls for official agencies.

I repeat what I said at the beginning. Section 58 (1) of the Post Office Act 1953 and other provisions mentioned in schedule 5 of the Post Office Act 1969 make illegal certain unauthorised interferences with communications. Therefore, the practices to which the hon. Member refers are, in many cases, illegal interceptions. They could be legal only if they were authorised to the Post Office by the signature of the Secretary of State.

Will my right hon. Friend agree that the bugging of someone's house could be just as much a potential threat to the freedom of the individual as the tapping of his telephone? Although my right hon. Friend's statement this afternoon has dealt exclusively with telephone interceptions, will he tell the House whether there is any good reason why the same procedures and safeguards which apply to telephone interception should not also apply to bugging?

As always, when I am asked to make a specific statement about a particular matter, I confine my answer to that matter. I was asked to deal with telephone interceptions. I have dealt with them in some detail, and I think that it is right that I should confine myself to them.