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Offence Of Disclosure

Volume 76: debated on Wednesday 3 April 1985

The text on this page has been created from Hansard archive content, it may contain typographical errors.

'A person who intentionally discloses a communication intercepted in the course of its transmission by post or by means of a public telecommunications system shall be guilty of an offence unless such disclosure is made—
  • (a) with the consent of the individual to or by whom the communication is sent;
  • (b) for the purposes connected with the maintenance or provision of postal or public telecommunications services;
  • (c) for the purposes in respect of which the Secretary of State has issued a warrant under section 2 below;
  • (d) to the Tribunal or to the Commissioner or to the Select Committee;
  • (e) in proceedings in respect of an offence under this Act;
  • (f) in the public interest to disclose evidence that a grave offence had been committed.'.—[Mr. Mc William.]
  • Brought up, and read the First time.

    I beg to move, That the clause be read a Second time.

    I do not wish to detain the Committee for long. I have no doubt that the Minister will pray in aid schedule 2. Several problems arise here. It seems to us that disclosure is a far more heinous crime than interception. Many people have to intercept communications in the course of their duties. If they disclose something to another person that is a different matter. Indeed, during the debates on what are now the Telecommunications Act 1984 and the British Telecommunications Act 1981, this was a preoccupation of hon. Members. Given that disclosure is the real crime—and I submit that the real crime is that someone who has gained information from interception discloses it to a third party — the Bill as drafted seems to us to be inadequate, which has led to the tabling of new clause 5.

    The proposed new section 45(2) to the 1984 Act, as set out in schedule 2, says that control should be lifted from people who make
    "any disclosure which is made for the prevention or detection of crime or for the purposes of any criminal proceedings".
    Any detection which is made under warrant is also covered by the Bill. The only assumption that can be made is that this must be a let-out for disclosures other than those that are made under the proposed subsection (1). Indeed, it is made clear in subsections (2)(a)and (c) that the same kind of let-out exists in terms of national security.

    It is not part of the Opposition's case that we shall make life easier for criminals or for those who would jeopardise national security. However, we are concerned that the Bill should not contain a catch-all provision. Therefore, we have tabled new clause 5, which is perfectly straightforward. It imports the principle of schedule 2 to the main body of the Bill, but does not import the let-out that has been built into schedule 2. Therefore, I commend it to the House.

    I should like to draw the hon. Gentleman's attention to paragraph (f) of his new clause because I, too, proposed a new clause—new clause 6—which was not selected, but which was virtually identical to his—

    It being Ten o'clock, THE CHAIRMAN left the Chair to report Progress and ask leave to sit again.

    Committee report Progress.

    Ordered,

    That, at this day's sitting, the Interception of Communications Bill may be proceeded with, though opposed, until any hour—[Mr. Archie Hamilton.]

    Bill again considered in Committee.

    Question again proposed, That the clause be read a Second time.

    I should like to ask the hon. Gentleman this question. I believe that it is important enough to ask if only because many of the amendments that have been withdrawn during the Committee stage will be debated at length in another place. Does the hon. Gentleman not think that by adding the words "to disclose evidence" and thereafter in paragraph (f), in other words, by trying to define what is meant by the public interest, he vitiates the purpose of adding that important paragraph?

    Subsection (2)(a), as set out in schedule 2, covers the point that the hon. Gentleman is making. It states that any person who makes such a disclosure
    "for the prevention or detection of crime"
    would be exempt from the provisions of schedule 2. I have sought to make the point that the most important areas of public interest are where a crime may not have been committed but where, none the less, it is in the genuine public interest that matters be disclosed. Will the hon. Gentleman address himself to that point?

    I am grateful for that intervention. We are trying to clarify the law as it is proposed. New clause 5 with paragraph (f) in it would entirely meet the point raised by the hon. Gentleman. It is an important point, and we must all bear it in mind. The difficulty is that the proposed subsection (2)(a) is too broad, whereas paragraph (f) of new clause 5 is narrow enough to impose a reasonable constraint upon the Executive, but broad enough to meet the hon. Gentleman's point. That was the intention behind drafting the new clause in this way. When we did so, we were minded of the new clause which the hon. Gentleman had tabled. It is not our intention to be partisan about this matter. We are trying to protect the people and at the same time allow the security services the access to information which they need. That is the entire import of new clause 5 — to prevent the sweeping suggestion in schedule 2 and to import the main point into the body of the Bill.

    The Government accept that it is essential to secure proper protection of material intercepted by warrant. That is what clause 6 is all about. The improper disclosure of intercepted material is already covered by various statutory provisions. The first is, of course, section 2 of the Official Secrets Act. It covers improper disclosure by those in the Crown service, which includes the police, and it is also expressly applied to the staff of the Post Office through the Post Office Act 1969 and to the operators of public telecommunications systems through the Telecommunications Act 1984. Its application is therefore comprehensive over possible possession of intercepted material.

    The telecommunications side is additionally covered by section 45 of the Telecommunications Act 1984, which, as the hon. Member for Blaydon (Mr. McWilliam) said, is amended by schedule 2. The hon. Gentleman complains about the wording of subsection (2) of that section. I suggest that his criticism is misconceived. Subsection (2)(a) follows the scheme of the Data Protection Act, under which, as the hon. Gentleman knows, a person may disclose matters to the police even though the police do not appear in his registration particularly as somebody to whom he may disclose data. Therefore, I suggest that it is entirely proper that a similar scheme should be found in this Bill.

    I intervene merely to point out that we opposed that section because we did not think it was sufficiently tightly drawn. Therefore, it is entirely consistent with the argument that we are now putting that this provision is not sufficiently tightly drawn.

    The hon. Gentleman is clearly entitled to make that point, but it is not going to get us very far tonight because we, obviously, were satisfied with the Data Protection Act or we would not have presented it to the House. We shall have to agree to disagree on that.

    Given the fact that the Data Protection Act is now on the statute book the hon. Gentleman must not be surprised to find that in this Bill we have followed exactly the same scheme for the disclosure of information.

    On the postal side the provisions are rather older, being contained in telegraph legislation of the last century, the provisions in question making it an offence for a post office official to disclose the contents of any message entrusted to the Post Office for the purpose of transmission to any person.

    In addition to these offences, there are two other considerations to be borne in mind. First, the arrangements which must be established under clause 6 and which the commissioner keeps under continuing review deal comprehensively with the safeguarding of intercepted material. Thus, at a stage short of the involvement of the criminal law there are arrangements to ensure that the material is properly looked after. The Secretary of State is obliged by clause 6 to address his mind to these arrangements when he issues warrants.

    Secondly, as a matter of practice in the Crown service as well as in the Post Office and for public telecommunications operators there are codes of conduct covering a wide range of things, including the proper handling of material obtained during the course of people's duties. Breach of these codes can in appropriate circumstances lead to dismissal.

    Therefore, there are a number of pieces of legislation which bear on these matters, there is the new protection provided in schedule 2 and there is the scheme in clause 6 of the Bill. These, taken together, I would submit, meet any mischief such as that suggested by the hon. Gentleman.

    I would not wish to delay the Committee by pushing this clause to a Division. I cannot say that I am entirely satisfied with the Minister's reply. It may well be that we shall seek to return to the matter at a later stage. At this stage, however, I beg to ask leave to withdraw the motion.

    Motion and clause, by leave, withdrawn.