I beg to move amendment No. 66, in page 5, line 43, leave out `Prime Minister' and insert 'Select Committee'.
With this it will be convenient to discuss the following amendments: No. 80, in clause 8, page 6, line 38, leave out 'Prime Minister' and insert 'Select Committee'.No. 95, in clause 8, page 7, line 25, leave out 'Prime Minister' and insert 'Select Committee'. No. 98, in clause 8, page 7, line 28, leave out 'Prime Minister' and insert 'Select Committee'. No. 102, in clause 8, page 7, line 31, leave out 'Prime Minister' and insert 'Select Committee'. No. 78, in clause 8, page 7, line 34, leave out 'Prime Minister' and insert 'Select Committee'. No. 105, in clause 8, page 7, line 38, leave out 'Prime Minister' and insert 'Select Committee'. No. 115, in clause 10, page 9, line 17, at end insert—
'"the Select Committee" means a Select Committee of the House of Commons appointed to keep under review the matters referred to in sections 1 to 6 of this Act.'.
I apologise because after I have spoken I shall have to absent myself from the debate for a short time. I do not intend to be discourteous to the Committee.The amendments are aimed at giving Parliament a role in the supervision of security services activities. Under the Bill the tribunal will report to the Prime Minister when it discovers a contravention of the rules. The commissioner will be appointed by the Prime Minister and will report to the Prime Minister. The Prime Minister will have to lay before Parliament the commissioner's annual reports, but the Prime Minister will be able to censor those reports on what he or she regards as national security grounds. The Prime Minister is required to consult the commissioner about such decisions, but in the end that decision is the Prime Minister's responsibility. The commissioner will be the Prime Minister's placeman. I do not mean that he will be a discreditable person, but he will owe his appointment to the Prime Minister alone. Under clause 8(2) the Prime Minister will be able to remove him from office and he will be paid according to a Treasury decision, probably on the Prime Minister's instructions. That is not a proper position in which to place someone whose function is to pass judgment on the activities of the Prime Minister and Ministers and the agencies that they control. The discretion to allow interception under the Bill is already much wider than we should like it to be. The commissioner's role is to review the system of authorised interception, which we believe to be too constrictive a role for him. Even with the best will in the world the Bill will create a system which at best will be cosy and at worst collusive. Recent events, in particular the disgraceful absurdity of the recent inquiry by Lord Bridge, show how easy it is to conduct a cover-up and how tempting it is for those without knowledge of what has taken place to suspect a cover-up. The only way in which hon. Members can seek to deal with this problem is by ending the possibility of a cover-up. That means ending the system in which the Prime Minister appoints the person whose role and purpose are to ensure that the Prime Minister and his or her colleagues behave properly in one of the most dangerous areas of activity in terms of civil liberties-one of the areas where, as the Sunday Telegraph has indicated., the Government are most in danger of going down the road that ends in the police state. 5 pm It is important that the special branch and MI5 know that not just Ministers are watching what they do — although that fear must have been eased by the Home Secretary's recent quickie investigation into their alleged misdemeanours from which they emerged, to universal astonishment, with a clean bill of health — but that a person appointed by Parliament has a right to examine their activities. Ministers may say that a Select Committee is too leaky or too irresponsible to be trusted with material involving national security. If leakiness is a disqualification from having access to security material, that would rule out the whole of the present Administration which has turned Cabinet government into government by sieve. What is more, the security services leak, sometimes to the Government's advantage or to their own advantage; sometimes to their own disadvantage, as in the case of the allegations by Cathy Massiter. If the commissioner was seen to be independent of the Government and not required to report to the Government, it is possible that disaffected members of the security forces might feel that it would be worth while to bring their misgivings to the commissioner rather than to take them to the press or television. That might even lead to an improvement in security. We are entrusting a Select Committee with matters involving national security. That has been done before. The Secretary of State for Defence recently revealed those fabulous Belgrano "crown jewels", which we were told were matters of the greatest secrecy, to members of the Foreign Affairs Select Committee. Even after that. the nation still survives. This law is being made by Parliament. Surely the House of Commons has sufficient confidence in itself to feel that it can appoint from among its Members persons who can be entrusted with security matters. Perhaps the Select Committee will comprise only Privy Councillors, but that will be a matter for hon. Members to decide if these amendments are inserted in the Bill. There are widespread misgivings that the security services, or at any rate elements within the security services, are out of control. If that were so, knowledge that a check on their activities could be conducted—in one sphere at any rate—by an independent person appointed by Parliament might have a healthy effect. Security has become a game played by a self-selected team. We believe that there should be an independent referee who should be a servant of Parliament, not a nominee of the Government of the day. As Lord Denning has firmly pointed out, the national interest is not synonymous with the interest of the Government. There is no better or more appropriate guardian of the national interest than the House of Commons.
I support the amendments. The kernel of the argument is whether the ultimate arbiter—the body that appoints the tribunal and the commissioner and is the final court of appeal in security matters — should be the Prime Minister or a Select Committee.One of my constituents who has achieved a certain amount of prominence in recent months is Mr. Clive Ponting. When the prosecution of Mr. Ponting began—it was announced last year—he noticed that his mail was being opened. I have in my hand an envelope that contained a simple, ordinary bank statement which was sent to my constituent by his bank. It took about six days to reach him. The envelope had obviously been opened clumsily and re-sealed. Mr. Ponting noticed later that, over the succeeding months, and even while his trial was proceeding, his mail was being treated similarly. He was extremely concerned about that. As his Member of Parliament, I am extremely concerned about it. To whom does Mr. Ponting turn if he wishes to complain about interception of his mail, which cannot conceivably be justified even when the prosecution is proceeding, on any grounds of national interest or national security? To whom ultimately does he turn to complain, to identify what has been happening and who or what authorised that action? To whom does he turn to have the matter resolved? In the Bill, the final court of appeal is the Prime Minister; but it was ultimately the Prime Minister, as head of the Government, who was bringing the prosecution against my constituent.
Before the hon. Gentleman went into the generality of his argument, he started with a specific matter. The hon. Gentleman suggested that he had in his hand an example of an unauthorised interception. Will he give hon. Members a little more detail, because I am sure that he would not wish an unfounded allegation to be put abroad without sustaining it? Has the hon. Gentleman checked with the Post Office? Does he have reason to believe that that envelope had been improperly opened by the security services or by the police? What is the hon. Gentleman's evidence?
It is not the place of the House of Commons to act as the jury in a criminal trial. The evidence is in my hand. It is an envelope which has been handed to me by my constituent. He has checked with the bank which sent it. The bank did not open or re-seal the envelope. When the envelope arrived at his house, it had clearly been opened and re-sealed during transit from the bank. In his view, that is precisely what happened.The point that I am endeavouring to make is not necessarily that this allegation about the opening of my constituent's mail is true or untrue. On the evidence, it appears to me that he has a good case in making that complaint. My point concerns how, if he believes that this has happened, he pursues the matter and attempts to arrive at the truth and ensure that the truth is identified and properly dealt with.
As I understand it, my hon. Friend is saying that this is one of a number of examples where the mail was late, the evidence suggested that it had been opened and the people who had sent it said that it had not been opened and re-sealed before being sent. Is not the essence of my hon. Friend's case his desire for something like a Select Committee to examine such cases, because hon. Members must satisfy themselves that such allegations are either substantiated or not substantiated? This cannot be done in any other way, and that is the point that is being put to hon. Members. The case put forward by my hon. Friend is an example.
My hon. Friend has gone to the heart of the argument. I am not necessarily saying that a Select Committee must examine the envelope, contact the bank, interview my constituent and talk to the Post Office. That is up to the tribunal and the commissioner. I am asking this question: to whom are the tribunal and the commissioner ultimately responsible?If my constituent is facing prosecution by the Government, the head of which is the Prime Minister, he can surely have little confidence in an appeals procedure to seek redress if the ultimate court of appeal, the person responsible for appointing, dismissing, controlling and monitoring the activities of the tribunal and the commissioner that are supposed to oversee the activities of the security services, is the self same head of Government who is bringing the prosecution. It is that which concerns me, and which should concern this House and make it wish to place some parliamentary rather than Executive scrutiny and control over the activities of the security services. I am expressing the concern of one of my constituents. It may happen to many other people throughout the country. There is a particular concern in this specific instance. I ask the House to consider carefully the point of principle of who should be the ultimate arbiter in such cases and in matters of control of the security services.
I had not intended to intervene in the debate, but the speeches of the hon. Member for Islington, South and Finsbury (Mr. Smith) and the right hon. Member for Manchester, Gorton (Mr. Kaufman) require one or two comments.I do not complain that a constituent of the hon. Member for Islington, South and Finsbury brought a matter to him and that he felt it right to raise it in the House. To my certain knowledge, during the past year there has been a considerable number of allegations of mail being tampered with and they have been most carefully examined by the chairman of the Post Office. He discovered a number of cases where machines had malfunctioned resulting in tampering with mail. He sent his apologies to those concerned. Indeed, there were a number of cases where, for one reason or another, the Post Office had slipped up. I am not sure that that is the explanation for the case mentioned by the hon. Gentleman. I would have thought that his first duty to his constituents, the Post Office and those who serve us in the police and security forces would have been to check with the Post Office to ascertain exactly what had happened, rather than raise the matter in the House in a fashion that implies that there was some improper, unauthorised and illegal action by members of the police or security services who have had no opportunity to reply to an implied allegation made without names or times. It is not a fair procedure in the House to make such a generalised allegation without first having ascertained the facts from the Post Office.
Surely that is precisely why we need a Select Committee. It is why so many other countries in the Western world have such a system. It enables the Committee not to investigate particular cases but to look into the general allegations so that it can satisfy the public. That is what democratic forums are for; that is why so many other countries in the Western world do it; and that is what makes us such an oddity.
I have enough regard for the hon. Gentleman to know that he can do much better than that, He has become hoist on a particular and rather absurd petard. I shall come in a moment to the question whether there should be a parliamentary Committee to oversee this action of a prerogative. I have said what I have said about the allegation of the hon. Member for Islington, South and Finsbury. I am entitled to comment on behalf of those who, at least implicitly, it is suggested have behaved improperly, without any evidence that the Post Office had first been asked to explain exactly what happened to the envelope.5.15 pm I and other hon. Members have, from time to time, debated these matters with the right hon. Member for Gorton. He put his arguments with his usual felicity and force. I do not agree with them. He suggested that the special branch is, in some strange way, wholly unaccountable. I remind the House that every special branch police officer is an ordinary police officer under the law. He may have particular functions, but he is just as much subject as any uniformed or detective officer, first and foremost, to the police discipline code; secondly, to the independent police complaints authority, which has been put in place by the recent Police and Criminal Evidence Act; thirdly, to the criminal law, as he must and should be; fourthly, to his chief officer and, through him, to his police authority; and, finally, to the oversight of the Chief Inspector of Constabulary. It is important that the House should recognise that the special branch is not some strange national Gestapo: it is a number of individual officers who are as responsible as any other constables to their individual chief officers and their police authorities. It is unfair to suggest in this House, and especially from the Front Bench, that there is a strange and unaccountable force within our midst. That is simply not the case. I found myself in agreement with the hon. Gentleman yesterday when he said that there was a problem of parliamentarians versus the bureaucrats. He opposed an amendment tabled by one of my hon. Friends because he did not want the Home Secretary's powers put in commission either to a body of judges or to a body of Privy Councillors. I share his objections. Yet today, the right hon. Gentleman virtually supported in respect of the Prime Minister the very things that he had been against in respect of the Home Secretary's conduct of his office. He cannot have it both ways. Either the Opposition think that it would be wrong to put the Home Secretary in commission or they now take another view that the Prime Minister's functions should be put in commission by a privy council group or—although this has not been proposed—by a group of judges. There is an inherent inconsistency in the Opposition's policy. Prime Ministers, whatever their party, ultimately have to take responsibility for the conduct of the Government. Parliamentary accountability is in this House. It is not simply the accountability that takes place when there are votes on issues of confidence. We all know that Ministers of the Crown, of any party, must live with this House all the time. If they cause offence to the House as a whole on one matter, the House will get back at them on some other matter. That is where there is a real accountability. Ministers have to live in Parliament and are Members of Parliament. Their real accountability arises not merely from the statute but from their existence here as Members of Parliament. It is impracticable, unconstitutional and certainly unnecessary to seek to remove from the Prime Minister the responsibility either of the appointment or of the oversight of the activities of the commissioner. The commissioner is a new invention. If I am not mistaken, his arrival on the scene is an example of the Government and the Home Secretary going further than the European Court actually requires. It is an attempt by the Home Secretary to reach out towards the objections that have been made from the Opposition on the matter of civil liberties, in the belief that he will be providing a greater degree of surveillance, oversight, monitoring and accountability of the activities of the security services. Far from it being a matter which is hidden or disguised, the fact that the Prime Minister, as head of the Government, is brought in to select, appoint and be responsible for the activities of the commissioner is a demonstration of how seriously the Government are taking the matter. I hope therefore that the amendment will not be accepted.
This group of amendments alerts hon. Members to the desirability of involving a Select Committee in the process of scrutiny, not just at the point mentioned in amendment No. 66 but at the points in the Bill referred to in other amendments in the group. We have an opportunity, therefore, to consider the necessity to involve a Select Committee in the Scrutiny of the activities and organisations to which the Bill relates.It is a course of action which the Prime Minister has strongly resisted—in many respects, though not entirely, because she has volunteered to the House statements on a number of security matters. The problem is that some of those statements have subsequently turned out to be based on incorrect advice given to the right hon. Lady. That is a reminder that relying on the occasional prime ministerial statement as the main basis for parliamentary scrutiny of the activities with which we are concerned is not adequate. The present Prime Minister, above all, should be the first to recognise the need to introduce some parliamentary scrutiny into these affairs, because she has been the victim, as it were, of security matters which have not been her direct responsibility. Some of them arose long before she came to office. Nevertheless, she has been given prepared statements to make to the House and has subsequently had to modify them. She may yet have to modify others—for example, those relating to the Hollis case. There are broader reasons why we need to consider a Select Committee as a place of recourse for the tribunal, the commissioner and others who may be involved in these matters. The most obvious reason for having such a body is to build greater public confidence in the security services. We would not be passing this legislation if the European Court had not pulled up this country for its lack of legislation in this sphere. Equally, hon. Members would not be supporting the broad principles of the Bill were we not convinced that circumstances exist when an unwelcome activity such as the interception of communications must be carried out. It is accepted that those who do that job undertake it on behalf of the country, to protect us from serious crime, such as terrorism; and to meet the criteria set out in the Bill. If they are to do that job properly, there must be greater public confidence that they are not engaged in activities that go far beyond those purposes. Some of the machinery in the Bill will assist in creating that confidence, but if, at the end of the day, the various bodies involved do no more than report to the Prime Minister, so contributing to an annual report to the House, public anxiety will not be allayed and confidence will not be sufficiently built up, for the public rightly expect this House to take a closer interest in these matters. I am speaking not of a day-to-day, looking-over-the-shoulder approach to individuals who carry out the tasks involved. That would be inconsistent with their carrying out those activities properly. This House should at least be involved in considering in some detail what criteria are being followed, how the work is being organised, who is doing it and what has happened when abuses have been alleged. Another reason why the reporting procedure should go wider than the Prime Minister and involve a Select Committee is that effective scrutiny is more likely to occur if the Prime Minister and those Ministers involved, such as the Home Secretary, are under pressure and subject to scrutiny by the House, rather than being able to avoid that scrutiny by not having to answer parliamentary questions on these issues, having to appear before Select Committees or having their officials appear before Select Committees. It is noticeable, looking back at the record, that, in their busy lives, Ministers give more attention to issues on which they are under pressure and subject to scrutiny than to those from which they are freed from that scrutiny. I am supported in that view by a former Prime Minister, the right hon. Member for Cardiff, South and Penarth (Mr. Callaghan), who, in a previous debate on this subject, conceded from his experience that, by and large, when Select Committees are pursuing matters, their inquiries often take priority with Ministers over other matters which are assumed to be going satisfactorily and on which those pressures are not exerted. We would have more effective scrutiny of the security services if there were some supervision by Parliament.
Bearing in mind the record of some Select Committees in relation to leaks, does the hon. Gentleman consider that the facilities and procedures are clearly enough established to allow delicate security matters to be aired before a Select Committee without the risk of those matters being leaked to the national press?
The hon. Gentleman may have been present when we debated matters being referred to the Privileges Committee. He will recall that I hinted at precisely the point that he raises when I spoke on that occasion.That said, it must be agreed that there is a world of difference between those considerations which prompted someone, rather dishonourably, to leak in advance certain proposals that were being considered in that Committee, and the considerations that arise when hon. Members are under a clear injunction to respect the security nature of certain matters. The record of the House is good when secure and delicate matters are involved. If the hon. Gentleman consults the record, he will find that the arguments on the sort of issues which he has in mind concern the premature disclosure of matters which, perhaps, could be politically embarrassing. That must be borne in mind when considering the type of Select Committee we would have. The level of seniority—whether Privy Councillors should comprise the whole membership—and similar relevant questions would need to be resolved when considering the nature of the machinery. I have confidence in the ability of the House to arrange such matters.
Will the hon. Gentleman agree, from the experience of the affairs of the Home Affairs Select Committee being leaked, and the experience of the Committee of Privileges having its report on the leak of the Home Affairs Select Committee leaked, and the number of leaks that have come from the Home Affairs Select Committee since then, that what is happening is in the nature not of a leak but of a burst pipe?
As the Chairman of the Home Affairs Select Committee, the hon. and learned Gentleman must put his own house in order. I took part with him in debating that issue.I could not have expressed myself sufficiently clearly in what I said. I explained that, however much I deplored breaches of confidentiality — I supported the hon. and learned Gentleman and voted with him for the reference of that leak to the Committee of Privileges—there was a difference between leaks which arose when someone was taking political advantage of the opportunity to disclose something prematurely, perhaps hoping to influence the outcome of the Committee's deliberations, and circumstances when people were aware that to disclose something would severely harm the interests of the nation and carrying out the work that the Committee was overseeing. There is a clear difference in such circumstances and hon. Members would need to look much harder to find evidence of matters going wrong on that front.
Is the hon. Gentleman aware that every week the Government deliberately leak, at unattributable meetings which are alleged never to have taken place, large chunks of information which otherwise would be official secrets?
Order. If that intervention were pursued, we should be getting right away from the subject of the amendment.
I was adducing reasons why the involvement of a Select Committee is important. If hon. Members say that the Select Committee system is incapable of examining any area of government in which disclosure would harm the interests of Government, we might as well abandon the Select Committee system and a great deal else that goes on here. We might as well, at the same time, dismiss many Ministers who, for a variety of reasons, disclose information, when, if their civil servants did it, they might find themselves following Mr. Ponting into the Old Bailey.
And out again.
We should have confidence in the House, and in its ability to recognise that we are capable of handling in an appropriate way matters which require that degree of security. We are at least as capable of doing so as Government Departments, Ministers or, indeed, the organisations that carry out these activities. Those organisations are not immune to leaks when a particular policy is being pursued, or resisted from within.I said that public confidence required the involvement of a Committee of the House, and that effective scrutiny was required. The third reason is that those who work within the security services on intercepting communications, on organising rather than carrying out intercepts, are placed in a difficult position if they are asked to do tasks which they consider fall outside the proper terms of reference of their work. That is another reason why it is necessary for the House, rather than the Executive, to be the ultimate recourse. The commissioner, the tribunal or any of the other bodies referred to in the Bill should have recourse to the House. It is not good enough to say, as the Home Secretary has said at least once, that those who are engaged in this work and asked to carry out tasks that they think are wrong and outside their terms of reference have only to refer upwards within their organisation or to the head of their organisation to be satisfied, to clear up the position and to have the matter properly settled. The Home Secretary must know how contentious the record is of a previous head of one of the organisations involved. He must know that it was impossible for those who suspected that previous head to go to him to raise their fears. Whether or not those fears were justified, the Home Secretary must know that the area of doubt is sufficient for there to be a great many people ranged on either side of the argument. In those circumstances, it was impossible for certain people to go to the head of the organisation and say, "I lay my cards on the table. I think that I am being asked to do this for the wrong reasons, and that the information will be used in the wrong way. What shall I do?" The proposition is ludicrous, which is why there must be some recourse outside the service. The ultimate recourse should be to the House, not the Executive. The Government must realise that it is in their interests and those of the country that if people within the services find themselves dragged into activities which they believe to be wrong they have the means to speak out clearly without recourse to the media. Television must not be the only way to challenge a practice which otherwise seems to be accepted by immediate superiors. The confidence of having a road to follow, at the end of which lies, not the head of the Executive or the head of Government, but the House of Commons, would improve morale in the security services, make it easier for them to do their job properly and enhance confidence in the services. The Home Secretary surely does not assume that morale in the services has been unaffected or unharmed by some of the problems that have arisen in recent years, let alone recent months, as some of his hon. Friends seek to do. The matter must be put right.
Those of us who were present yesterday will recall that the hon. and learned Member for Montgomery (Mr. Carlile) rejected the hon. Gentleman's line. The hon. and learned Gentleman supported the thoughts propounded by my hon. Friend the Member for Crawley (Mr. Soames) and my hon. and learned Friend the Member for Fylde (Sir E. Gardner). They suggested that, while the point about accountability was entirely understandable, a Select Committee was not the appropriate mechanism. Would the hon. Gentleman agree to contemplate one of my alternatives, which is a committee of Privy Councillors specifically chosen to allow for accountability, and at the same time the removal of such persons from the day-to-day hurly-burly of political life?
My hon. and learned Friend was addressing a different part of the Bill. He talked about a committee of Privy Councillors without excluding hon. Members who are Privy Councillors from that committee. Clearly there are many different devices by which we can ensure that scrutiny is not confined to the head of the Executive. That is the key objective. There must be some recourse which does not simply involve the head of the service, a commissioner or a tribunal, depending on which part of the Bill we are talking about, going directly back to the head of the Executive, and only an annual report to Parliament as the means of going beyond that.That is a key issue. It arises under this Bill and will arise again as we consider wider aspects of the work of the security services. Now is a good time for the Government to address themselves to the problem. The Bill is particularly appropriate to it. I hope that they will go further than they have gone so far in recognising the genuine need that I have set out.
I had not intended to intervene in this part of the debate, until I listened to the speech of the hon. Member for Berwick-upon-Tweed (Mr. Beith). He put his finger on the central weakness of the Bill, which is that there is no mechanism, outside the internal security services and the Executive, for parliamentary or extra-territorial control of the security services in relation to the interception of communications.I was especially interested in the hon. Gentleman 's brief references to the Hollis case, which, historically speaking, are the most illustrative episodes. They suggest some form of mechanism, perhaps not quite along the lines suggested by the hon. Gentleman, but along the lines of new clause 3, which will be debated shortly. In view of his suggestions, it is right at this stage to look at the history, without revealing deep secrets, to highlight the grave difficulties which the security services got into in the past and could get into in future if there is not some form of parliamentary control outside the Executive and the security services. It is well known to those who have read recently published books on the subject that in the mid-1960s it was common ground among the heads of the security services that MI5 had been deeply penetrated and that there were Soviet moles at large who could seriously be compromising the whole of Western intelligence. It was identified at an early stage that both Philby and Blunt were responsible for much of that penetration, but the fear continued that there was a bigger mole at large. In 1963 a break came, largely because of the interception of communications, and the hunt for the super mole was narrowed down to one of four people. Extraordinarily enough, the hunt was reduced to either the director-general of the security services, Sir Roger Hollis, or his deputy, Mr. Graham Mitchell. I stress that there is nothing new in what I am saying, in case anyone thinks that I am making some sensational revelation. The head of the division, who was in charge of the whole operation, naturally wished to bring the matter to whatever level seemed appropriate to get to the heart of the penetration. What could he do? We now come to the kernel of what was wrong then, and is wrong today. There was nowhere for him and his colleagues to go outside his service. They were pejoratively referred to as "the young Turks", which is a most gratuitous label in view of the deeply patriotic and serious professional counterintelligence work that they have done. The head of the division responsible went outside the service, to the head of M16, to ask for guidance. The head of M16 answered, "It cannot be Roger, and therefore you must ask his permission to investigate the deputy director-general of security services." There then followed a somewhat bizarre dinner at the Travellers' Club, at which the head of the anti-Soviet division discussed counter-penetration with the director-general of the security services and the possibility of investigating the deputy director-general of the security services. By that stage, it was clear how incestuous the operation was becoming. There was no ombudsman, parliamentary Select Committee, independent oversight or court of appeal to whom a genuine and sincere whistle-blower—albeit an internal whistle blower—could go. There lay a fundamental weakness, because one of the suspects then had to insist that an investigation take place on the other suspect. There was then a massive investigation. It was well documented by journalists and others. It is illustrative that that investigation involved methods which we are reassured by my right hon. and learned Friend the Home Secretary and by the Bill could not take place today. I do not always find myself in complete agreement with the right hon. Member for Chesterfield (Mr. Benn), especially when he clashes in the House of Commons with my right hon. and learned Friend the Home Secretary. There was a most revealing exchange yesterday when my right hon. and learned Friend rebuked the right hon. Gentleman for suggesting that surveillance and investigation of communications were two completely different things. My right hon. and learned Friend said:
I was pleased to hear that reassurance given in 1985. In the middle of the 1960s, it would not have been followed. To carry out the investigation into the deputy director-general of the security services, Mr. Mitchell, all kinds of surveillance techniques were used to listen to telephone conversations, without ministerial warrants or knowledge, and with a complete abandonment of the rules which we hope are carefully observed today. I hope that before the Bill reaches the statute book all those responsible for today's arrangements will look back to the breaches in 1963, or thereabouts, to ensure that such an evasion of the ground rules and regulations cannot take place today."There is the world of difference between listening to somebody on the telephone, which is essentially what interception is about, and surveillance. The right hon. Gentleman has just said that under the cloak of surveillance people's telephone conversations can be listened to. That simply is not true."—[Official Report, 2 April, 1985; Vol. 76. c. 1121.]
How does my hon. Friend know that no warrant was issued for the tapping of the deputy's telephone?
Order. I have been listening carefully to the hon. Member for Thanet, South (Mr. Aitken). We are discussing a narrow series of amendments about accountability, and I hope that he will bring himself to the amendment directly.
I shall not wander any further, Mr. Armstrong, nor detain the Committee for much longer. Some form of parliamentary control or court of appeal—be it a parliamentary commissioner or ombudsman of the type suggested in new clause 3 or a Select Committee of the type suggested in the amendments—is crucial.My hon. Friend the Member for Bury St. Edmunds (Mr. Griffiths) asked how I know that no warrant was issued. I believe it, on good authority, to be the truth. The records are there to be inspected. The security services have put their house in much better order today than was perhaps true in 1963. I finally illustrate the need for some form of parliamentary control, as opposed to leaving the executive in control, by adding a postscript to the Hollis story. The deep discontent over the findings, or, to be more precise, the non-findings, of the various committees, researches and investigations remains unresolved. There was a remarkable episode when, suddenly, I believe in approximately 1970, the then director-general of the security services terminated, without the agreement of his colleagues, all investigations and all further chasing of leads into penetration at that high level. At least one member of what was called the fluency committee—another highly patriotic and deeply dedicated counterintelligence officer, Mr. Stephen de Mowbray—was so distressed that he sought to get through to a higher level. He was able to do so by a most remarkable effort—by knocking on the door of No. 10 Downing street and demanding to see the Prime Minister. At first he was refused, but, as a result of an old college connection with a private secretary at No. 10 Downing street—again, only the incestuous old boy network made some of these secret approaches outside the service possible—he was able to see the secretary to the Cabinet. Another inquiry under Sir Burke Trend was set up. The results of that inquiry would, by parliamentary commissioner or Select Committee standards, be unsatisfactory because of the methods used, and because the results given to some of those involved, and to my right hon. Friend the Prime Minister much later, were completely different.
Is not what the hon. Gentleman saying directed to the substance of the amendments? What happened at the end of the day—if it is the end of the day, and it may not be—was that the Prime Minister made a statement to the House, with some aspects of which Lord Trend seems to have disagreed. In particular, he disagreed with the chronology of the events. If the matter had been brought before a Select Committee or some other scrutiny body it would have been possible to pose some questions on that point. The idea that a once-and-for-all statement can deal with such a scrutiny problem is effectively torpedoed by the experience in that case.
I agree with the hon. Gentleman. At least when a Select Committee reports there is one final report. One of the problems with Lord Trend's report was not just that it was unpublished—that might have been necessary given the degree of secrecy involved—but that at least two or three different versions of the report and conclusions seem to have emerged. It is most unsatisfactory to have three answers when they do not seem to sing in unison. There is a fundamental weakness, not just in the methods of such oversight, but in its reporting. That would be remedied by a Select Committee.Despite my somewhat encouraging remarks about the amendments, I shall not join the hon. Member for Berwick-upon-Tweed in the Lobby tonight, not least because I tend to agree with the intervention of my hon. and learned Friend the Member for Fylde (Sir E. Gardner), who suggested that a Select Committee would be like a burst pipe. A safer form of conduit is necessary for an adequate degree of oversight. At the same time, I should like the Government clearly to understand that there is support and sympathy on the Conservative Benches for the principle that what is needed, and what is still lacking from the Bill, is some small foothold of independent parliamentary oversight of the security services. The lessons of the past and the present—I refer, in particular, to the Massiter disclosures—do not encourage us to think that they will go unheeded in the future.
I always enjoy listening to the hon. Member for Thanet, South (Mr. Aitken) when he speaks about these issues. He has not disappointed us this evening. May I begin by declaring my interest as a sponsored member of the National Communications Union engineering section? May I also compliment the Clerk of the House on cheering up the Clerk's Bench no end?There are some serious points to consider. I shall pick up the point that my hon. Friend the Member for Islington, South and Finsbury (Mr. Smith) made and the reply by the hon. Member for Bury St. Edmunds (Mr. Griffiths). My hon. Friend has a point. I see in the Register of Members' Interests that the hon. Member for Bury St. Edmunds is a consultant to the Police Federation. He should ask it for a better brief than the one he has tonight. I recommend that he should read the point that Charles Morris, the former Member for Manchester, Openshaw, made in Committee on the Telecommunications Bill in 1982. He described in detail how postal interception occurs, how it is authorised and what is done. Clearly, the hon. Member for Bury St. Edmunds does not know what he is talking about. That information is on record in the Official Report, and I would commend to any hon. Member who has not read it that part of the Committee proceedings. It is quite illuminating.
In case the hon. Gentleman is under an illusion, may I say that I have no brief from the Police Federation on these matters. My intervention about the interception of the mail mentioned by the hon. Member for Islington, South and Finsbury (Mr. Smith) was made solely because I believe that it is necessary, in that case, to consider the evidence. I made no general statements.
I do not impugn the behaviour of the hon. Gentleman. My point is that I am always proud to declare my interest in the House. If the hon. Gentleman fails to do so, that is a matter for him and for the Chair, not for me. Every hon. Member knows the basis on which I speak. They know that I am a sponsored member of my union. That does not imply—
Order. We must keep to the amendment.
I beg your pardon, Mr. Armstrong. I wanted to make it clear that I speak on amendment No. 66 on my own account, because my union has no policy on amendment No. 66. I accept that the Police Federation probably has no policy on amendment No. 66 either.I agree with the final point made by the hon. Member for Thanet, South. We do not want to have to deal with drain pipes. It is true that there have been leaks from Select Committees to the press—the Committee of Privileges has already determined that that has happened — but those leaks have been made to the British press. Unfortunately, the security services have been known in the past to leak directly to the Kremlin. There is a world of difference between a leak from a Select Committee to the British press and a leak to the Kremlin. I accept the point by the hon. Member for Thanet, South, but I also accept that there could be some misgivings and that Conservative Members might prefer a committee of Privy Councillors. I know the oath that a Privy Councillor takes. It is supposed to be classified, but it has been well publicised. The oath is a serious one. However, when hon. Members take their seats in the House they also take an oath at the Dispatch Box. That oath is just as sincere and just as binding, and I do not believe that Select Committees are any more leaky than any other arrangements that we may set up. The Bill will withdraw liberties from our people. If we were discussing the Bill in a vacuum and if there had been no 1920 Act, we would be discussing interference with the privacy of the citizens of this country and withdrawing their liberties. I would prefer this House, rather than the Executive, to have the final oversight over the withdrawal of liberties. I am sure that, as a philosophical point, that view would command acceptance much more widely than just among my hon. Friends.
The hon. Member for Bury St. Edmunds (Mr. Griffiths) said towards the close of his speech that it would be almost unconstitutional for these matters to be discussed.
That is what I heard—that it would not be constitutional. I wondered for a moment whether the hon. Gentleman was going to suggest that we were being subversive in wanting some degree of parliamentary scrutiny and accountability in these proceedings.The present arrangements, under which there is no accountability by the security services, is of long standing, but it is wrong. For example, it is out of order for an hon. Member to table a question on such a matter. We can occasionally debate the subject. I have an Adjournment debate on it tomorrow. However, although the hon. Member for Thanet, South seemed to accept the case for parliamentary accountability, I believe that the essence of the division between the two sides of the Committe is that we believe that some degree of such accountability is a necessity. The Prime Minister is of course responsible to Parliament, but she has immense powers. She is the head of the security services. To some extent, as the Bill stands, the Prime Minister is almost judge and jury in her own cause. There is no way in which we can question the Prime Minister on such matters. On numerous occasions, the Home Secretary has justified the definition of subversion that refers to parliamentary democracy and to anyone who tries to undermine or destroy it. The irony of the situation is that Parliament itself has no say in these matters. When the Select Committee on Home Affairs decided to look into the special branch, the hon. Member for Bury St. Edmunds was quoted as saying that he was very worried. He thought that there could be dangers regarding security matters. The Select Committee leak had nothing to do with state security. The leak was certainly unfortunate, but it was related to a draft report. Would anyone now suggest that the safety of the state is in danger because a Select Committee inquires into the special branch? Has the state been undermined? However, when the Home Secretary appeared before the Select Committee at the beginning of this Parliament he was somewhat hesitant about the Select Committee undertaking such an inquiry. He was certainly not enthusiastic. It seems that it was as a result of that inquiry by the Select Committee that the guidelines for the special branch and the security services were published. They were certainly not published beforehand. Without any inquiry by the Select Committee, they might well have remained confidential. Has the security of the country been eroded because those guidelines were published? There is a growing feeling in the House, and certainly in the country, that there is no real and effective exercise of scrutiny over the security services. We are told that they report to the Prime Minister and to the Home Secretary. We do not know how often they do so.
Does the hon. Gentleman believe that Great Britain needs a security service in the first place?
If the hon. Gentleman would attend tomorrow's Adjournment debate, he would realise not only that I believe that a security service is as necessary for this country as for any other democracy—we know how the dictatorships operate—but that I believe that a good deal of the work done by that service is necessary. I would be the last person to argue that we do not need a security service. The hon. Gentleman has asked a rather silly question. Is it likely that I would be opposed to the existence of such a service?I believe, however, that the security service should be subject to some scrutiny. Serious allegations have been made and not answered by the Home Secretary or the Prime Minister about how MI5 operates and about the manner in which people who in no way wish to undermine parliamentary democracy are subjected to harassment and investigation. In my view, the amendment would strengthen the Bill.
There is no doubt of the importance of Parliament being involved in the oversight of security matters. The Government recognise that Parliament has some role to play because of the requirement in clause 8(7) that the report from the commissioner must be laid before Parliament annually. However, this group of amendments goes further than is sensible as the amendments substitute the words "Select Committee" for "Prime Minister", almost regardless of what functions the Prime Minister might be exercising according to that part of the Bill.The Bill requires the Prime Minster to appoint the commissioner, to receive the findings of the tribunal, to lay before Parliament a copy of the annual report and to receive the report of the commissioner. Each of those functions is quite different and it does not make obvious sense to substitute a Select Committee for the discharge of those functions. 6 pm I do not wish to pre-empt our debate on amendment No. 79, but this is as convenient a moment as any to consider whether the Prime Minister is the appropriate person to appoint the commissioner. I submit that the Prime Minister is not the appropriate person and that, at that point, one should wish to establish Parliament's right and interest in the oversight of these matters. It is not suitable for Parliament to put its duty of appointment in the hands of a Select Committee. What amendment No. 79 proposes is based on good parliamentary precedent, and it is a more practical means of considering who should appoint the body with the duty of oversight. To insert the concept of a Select Committee receiving the work of the commissioner is to overlook the fact that, if evidence of misfeasance is turned up by the commissioner, it cannot be to Parliament that we look for a remedy. Such is essentially a matter for the Executive. The conduct of the secret services cannot be handled on a day-to-day basis by Parliament or by a Select Committee. That is not a practical proposition. The task must be discharged by the Prime Minister. If there has been misfeasance, it must be the Prime Minister who provides the remedy. Perhaps there should be an intermediate stage at which Parliament-gives its views and passes on the report of the commissioner. No doubt such a thought lies behind the suggestion that a copy of the report should be laid before Parliament annually. Parliament might think it appropriate to establish a Select Committee to consider the report and to report to the House. All that is a perfectly reasonable use of a Select Committee, but putting the commissioner's findings in the hands of a Select Committee and leaving it there is not the proper way in which to tie up this matter. Although I understand the Labour party's desire to promote the concept of a Select Committee having a series of different roles, its proposals are muddle headed. The Labour party has failed to distinguish between the duty to appoint, the duty to scrutinise, the duty to consider the results of the scrutiny and the duty to act on the findings. Those roles cannot be conducted suitably by a Select Committee, but must be carried out by different people. We can have different views about who those different people should be, but if something has gone wrong we cannot look to a Select Committee to have it put right. The matter must be in the hands of the Prime Minister.
The debate has been wide ranging and covered a large part of the activities of the security service. I hope that I shall be forgiven for returning to the subject of the amendments and Bill—interception and the arrangements for the handling of it.I strongly agree with what the hon. Member for Caithness and Sutherland (Mr. Maclennan) has just said. These amendments, which seek to substitute "Select Committee" for "Prime Minister" in a wide variety of areas, are ill thought out and do not consider what scrutiny and independent consideration is appropriate, who should do it and who should be reported to. It is noticeable that, although we have debated these matters for some time, it is only in the past few minutes that any consideration has been given to the role of the tribunal and the commissioner—a crucial matter in regard to who should appoint them and to whom they should report. Moreover, they are different bodies. The hon. Member for Islington, South and Finsbury (Mr. Smith) referred to his anxieties about whether an interception had taken place or should have taken place, whether of post or of telephone. It was extraordinary that he did not look to that part of the Bill which, for the first time—it has never been done by a Labour Government—appoints an independent tribunal of legally qualified people to whom a complaint can be made and which will have access to all of the relevant information and which will be able to overrule, on the basis of it having been unreasonable, a decision of a Secretary of State that there should be interception. It will also be able to give compensation to the person at the receiving end of an interception which ought not to have taken place. That is a judicial or quasi-judicial task. Because of the way in which the tribunal operates, and in view of the nature of the subject matter, it cannot be identical with a court of law. It would be odd for such a function to be accountable to the House of Commons, any more than a court of law should be accountable to the House. We are setting up a mechanism for examining complaints. It is right that they should be considered by a body which is able to give redress. A complaint about interception should lead to anxieties about the conduct of the interception operation generally—its oversight, regulation and the rest. The tribunal reports to the Prime Minister, so that the grounds for its decision can be taken account of by the Prime Minister and other Ministers responsible for these matters. It is significant that the tribunal also has a duty to send the commissioner a copy of every report that it makes in this way. At that stage, we must consider the task of the commissioner. We should not forget that he is a senior judicial figure. He is not accountable to the Prime Minister. He might be appointed by the Prime Minister, but the idea that anyone who holds senior judicial office is anything other than wholly independent is ludicrous. The right hon. Member for Manchester, Gorton (Mr. Kaufman) might hark back to less calm days in the consideration of these matters when casting the odd slur, but I appreciate his diffidence in doing so today. That is welcome. The fact of the matter is that whoever is appointed commissioner will be wholly independent. He will not be beholden to anyone, and no particular parliamentary form of appointment will be required to make him independent. He will be able to review everything connected with authorised interception—not just a particular case, but the whole system and how it is working. That is his task. To perform that task, he must have access to highly confidential matters and to be able to go behind the scenes. He will be able to report annually, and his report will be laid before Parliament. That is the essence of the scheme. It will enable the commissioner to look very much more broadly at these matters, with the knowledge of any reports from the tribunal, and to report in a sensible way, granted that some limitations must be placed upon the publication of reports which deal with matters of this kind. It is inconceivable that any commissioner who was qualified in that way would be content for a moment to continue to hold that office if the Prime Minister in some way censored a report because it contained matters which it would be inconvenient for the Government to publish, as opposed to matters which it would genuinely be contrary to the national interest to disclose. There are, therefore, two novel protections in the Bill —the tribunal dealing with particular complaints, and the commissioner dealing with the general process. Both of those matters are, I believe, important and novel innovations. Because they will operate in the way that the hon. Member for Caithness and Sutherland has identified, it would not be appropriate for them to report 10 a Committee of the House, whether a Select Committee or a Special Committee. That is not their task, nor would it assist them in the discharge of their task. It is right for the House to decide whether it is appropriate that such institutions should be set up. I do not claim, and I cannot claim, that they are perfect. II is also right that a wide range of matters relating to the conduct of our security services should have been raised in the debate, but they cannot be dealt with in this way. I commend these institutions as marked improvements. They will provide redress for the individual who has been wronged or who thinks that he has been wronged. They will also provide for a general oversight of the system in a way which should command the confidence of the House. I would go further in urging my right hon. and hon. Friends not to agree with the amendments put forward by the Opposition by saying that, as has been illustrated in the debate, their purpose and effect involve a wide variety of different concepts which, as the hon. Member for Caithness and Sutherland pointed out, have been muddled together. What is more, the task of the tribunal and the commissioner, important though limited as it is, would not be enhanced in any way by the involvement of the sort of proceedings envisaged by these amendments. It is for those reasons that I ask the Committee to reject them.
We shall be pressing these amendments to a vote. We are far from satisfied with the Home Secretary's answer. This is a political matter—the Home Secretary said that himself—yet he is setting up a quasi-judicial structure. In doing so, he is getting himself into unnecessary difficulties. Neither the Home Secretary nor the Prime Minister, with the best will in the world, will have sufficient time to oversee this operation. That is why a Select Committee ought to be set up.I point out to the hon. Member for Bury St. Edmunds (Mr. Griffiths) that it is totally inappropriate every time some anxiety is expressed to say that if one pretends that it does not exist it will go away. The hon. Member for Bury St. Edmunds operates like an ostrich. He sticks his head in the sand and hopes that, somehow or another, people will stop saying what they are saying when they are deeply concerned about things. The hon. Member for Berwick-upon-Tweed (Mr. Beith) was absolutely right when he said that there is a great deal of public concern about this matter. That public concern will not go away until we put right the structures to give those outside Parliament confidence in the system. Other countries throughout the western world have the kind of system that we have described. The Canadians, with a system otherwise almost identical to our own, have it. Are we saying that the Canadians are in some way better than the British and that we cannot have it? Are we saying the same about the western Europeans? There has also been the nonsense argument this afternoon about leaks. I would say to the hon. Member for Thanet, South (Mr. Aitken), who I thought was going to join us in the Lobby, that if that is his reason for not voting with us, it is the worst reason. He is saying that all these other countries can cope with leaks but that we cannot. The present system is not leakproof. Many years ago Secretaries of State for Education made it mandatory that all public schools had to produce at least 5 per cent. of spies, because that is where they all come from. They end up in this system, yet they are supposed to be checking the system that we are all worried about. It is nonsense. The Opposition believe that, as happens in other modern democracies, we ought to trust the democratic system. This is our opportunity to do so. It is an infinitely better system than the quasi-judicial system that has been devised by the Home Secretary.
Question put, That the amendment be made:—
The Committee divided: Ayes 161, Noes 241.
Division No. 182]
|Adams, Allen (Paisley N)||Clark, Dr David (S Shields)|
|Anderson, Donald||Clarke, Thomas|
|Archer, Rt Hon Peter||Clay, Robert|
|Ashton, Joe||Clwyd, Mrs Ann|
|Bagier, Gordon A. T.||Cocks, Rt Hon M. (Bristol S.)|
|Banks, Tony (Newham NW)||Cohen, Harry|
|Barnett, Guy||Coleman, Donald|
|Barron, Kevin||Concannon, Rt Hon J. D.|
|Beckett, Mrs Margaret||Conlan, Bernard|
|Benn, Tony||Cook, Frank (Stockton North)|
|Bermingham, Gerald||Cook, Robin F. (Livingston)|
|Bidwell, Sydney||Corbett, Robin|
|Boothroyd, Miss Betty||Corbyn, Jeremy|
|Boyes, Roland||Cowans, Harry|
|Bray, Dr Jeremy||Craigen, J. M.|
|Brown, Hugh D. (Provan)||Crowther, Stan|
|Brown, N. (N'c'tle-u-Tyne E)||Cunningham, Dr John|
|Brown, R. (N'c'tle-u-Tyne N)||Dalyell, Tam|
|Buchan, Norman||Davies, Rt Hon Denzil (L'lli)|
|Caborn, Richard||Davies, Ronald (Caerphilly)|
|Callaghan, Jim (Heyw'd & M)||Davis, Terry (B'ham, H'ge H'l)|
|Campbell-Savours, Dale||Deakins, Eric|
|Canavan, Dennis||Dewar, Donald|
|Carter-Jones, Lewis||Dixon, Donald|
|Dormand, Jack||Mason, Rt Hon Roy|
|Dubs, Alfred||Maxton, John|
|Duffy, A. E. P.||Maynard, Miss Joan|
|Dunwoody, Hon Mrs G.||Meacher, Michael|
|Eadle, Alex||Michie, William|
|Eastham, Ken||Millan, Rt Hon Bruce|
|Edwards, Bob (W'h'mpfn SE)||Miller, Dr M. S. (E Kilbride)|
|Evans, John (St. Helens N)||Morris, Rt Hon A. (W'shawe)|
|Fatchett, Derek||Morris, Rt Hon J. (Aberavon)|
|Field, Frank (Birkenhead)||Nellist, David|
|Fields, T. (L'pool Broad Gn)||Oakes, Rt Hon Gordon|
|Flannery, Martin||O'Brien, William|
|Foot, Rt Hon Michael||O'Neill, Martin|
|Foster, Derek||Orme, Rt Hon Stanley|
|Foulkes, George||Park, George|
|Fraser, J. (Norwood)||Parry, Robert|
|Freeson, Rt Hon Reginald||Patchett, Terry|
|Garrett, W. E.||Pavitt, Laurie|
|George, Bruce||Pendry, Tom|
|Godman, Dr Norman||Pike, Peter|
|Golding, John||Powell, Raymond (Ogmore)|
|Gould, Bryan||Prescott, John|
|Hamilton, James (M'well N)||Radice, Giles|
|Hamilton, W. W. (Central Fife)||Randall, Stuart|
|Hardy, Peter||Redmond, M.|
|Harman, Ms Harriet||Rees, Rt Hon M. (Leeds S)|
|Harrison, Rt Hon Walter||Richardson, Ms Jo|
|Hattersley, Rt Hon Roy||Roberts, Ernest (Hackney N)|
|Haynes, Frank||Robertson, George|
|Healey, Rt Hon Denis||Rowlands, Ted|
|Hogg, N. (C'nauld & Kilsyth)||Sheerman, Barry|
|Home Robertson, John||Sheldon, Rt Hon R.|
|Howell, Rt Hon D. (S'heath)||Shore, Rt Hon Peter|
|Hoyle, Douglas||Short, Ms Clare (Ladywood)|
|Hughes, Robert (Aberdeen N)||Skinner, Dennis|
|Hughes, Roy (Newport East)||Smith, C. (Isl'ton S & F'bury)|
|Hughes, Sean (Knowsley S)||Smith, Rt Hon J. (M'kl'ds E)|
|Jones, Barry (Alyn & Deeside)||Snape, Peter|
|Kaufman, Rt Hon Gerald||Soley, Clive|
|Kilroy-Silk, Robert||Spearing, Nigel|
|Kinnock, Rt Hon Neil||Stewart, Rt Hon D. (W Isles)|
|Lambie, David||Strang, Gavin|
|Lamond, James||Straw, Jack|
|Leadbitter, Ted||Thomas, Dafydd (Merioneth)|
|Leighton, Ronald||Thompson, J. (Wansbeck)|
|Lewis, Ron (Carlisle)||Tinn, James|
|Lewis, Terence (Worsley)||Torney, Tom|
|Litherland, Robert||Wardell, Gareth (Gower)|
|Lloyd, Tony (Stretford)||Wareing, Robert|
|Loyden, Edward||Welsh, Michael|
|McCartney, Hugh||Williams, Rt Hon A.|
|McDonald, Dr Oonagh||Wilson, Gordon|
|McGuire, Michael||Winnick, David|
|McKelvey, William||Young, David (Bolton SE)|
|Mackenzie, Rt Hon Gregor|
|McTaggart, Robert||Tellers for the Ayes:|
|Madden, Max||Mr. Roger Thomas and|
|Marek, Dr John||Mr. John McWilliam.|
|Adley, Robert||Blackburn, John|
|Aitken, Jonathan||Blaker, Rt Hon Sir Peter|
|Alexander, Richard||Body, Richard|
|Alison, Rt Hon Michael||Bonsor, Sir Nicholas|
|Amess, David||Boscawen, Hon Robert|
|Arnold, Tom||Bottomley, Peter|
|Ashby, David||Bottomley, Mrs Virginia|
|Aspinwall, Jack||Bowden, Gerald (Dulwich)|
|Baker, Rt Hon K. (Mole Vall'y)||Boyson, Dr Rhodes|
|Baker, Nicholas (N Dorset)||Braine, Rt Hon Sir Bernard|
|Baldry, Tony||Bright, Graham|
|Batiste, Spencer||Brinton, Tim|
|Bellingham, Henry||Brittan, Rt Hon Leon|
|Bendall, Vivian||Brown, M. (Brigg & Cl'thpes)|
|Benyon, William||Browne, John|
|Best, Keith||Bruinvels, Peter|
|Bevan, David Gilroy||Buck, Sir Antony|
|Biffen, Rt Hon John||Budgen, Nick|
|Biggs-Davison, Sir John||Burt, Alistair|
|Butcher, John||Irving, Charles|
|Butler, Hon Adam||Jessel, Toby|
|Carlisle, John (N Luton)||Jones, Gwilym (Cardiff N)|
|Carlisle, Kenneth (Lincoln)||Jones, Robert (W Herts)|
|Carlisle, Rt Hon M. (W'ton S)||Kershaw, Sir Anthony|
|Carttiss, Michael||Key, Robert|
|Cash, William||Kilfedder, James A.|
|Channon, Rt Hon Paul||King, Roger (B'ham N'field)|
|Chapman, Sydney||King, Rt Hon Tom|
|Chope, Christopher||Knight, Gregory (Derby N)|
|Clark, Dr Michael (Rochford)||Knight, Mrs Jill (Edgbaston)|
|Clark, Sir W. (Croydon S)||Knowles, Michael|
|Clarke, Rt Hon K. (Rushcliffe)||Knox, David|
|Clegg, Sir Walter||Lamont, Norman|
|Cockeram, Eric||Lang, Ian|
|Colvin, Michael||Latham, Michael|
|Conway, Derek||Lawrence, Ivan|
|Coombs, Simon||Lee, John (Pendle)|
|Cope, John||Lennox-Boyd, Hon Mark|
|Cormack, Patrick||Lester, Jim|
|Couchman, James||Lilley, Peter|
|Cranborne, Viscount||Lloyd, Ian (Havant)|
|Crouch, David||Lloyd, Peter, (Fareham)|
|Dickens, Geoffrey||Lyell, Nicholas|
|Dorrell. Stephen||McCusker, Harold|
|Douglas-Hamilton, Lord J.||Macfarlane, Neil|
|Durant, Tony||MacKay, Andrew (Berkshire)|
|Edwards, Rt Hon N. (P'broke)||MacKay, John (Argyll & Bute)|
|Eggar, Tim||Major, John|
|Emery, Sir Peter||Malins, Humfrey|
|Eyre, Sir Reginald||Mates, Michael|
|Fallon, Michael||Mather, Carol|
|Farr, Sir John||Mellor, David|
|Fenner, Mrs Peggy||Meyer, Sir Anthony|
|Finsberg, Sir Geoffrey||Morris, M. (N'hampton, S)|
|Forman, Nigel||Moynihan, Hon C.|
|Forth, Eric||Murphy, Christopher|
|Franks, Cecil||Neale, Gerrard|
|Fraser, Peter (Angus East)||Nicholls, Patrick|
|Fry, Peter||Normanton, Tom|
|Gale, Roger||Norris, Steven|
|Galley, Roy||Page, Richard (Herts SW)|
|Gardiner, George (Reigate)||Patten, Christopher (Bath)|
|Gardner, Sir Edward (Fylde)||Pawsey, James|
|Garel-Jones, Tristan||Powley, John|
|Gorst, John||Proctor, K. Harvey|
|Gow, Ian||Raison, Rt Hon Timothy|
|Grant, Sir Anthony||Renton, Tim|
|Gregory, Conal||Rhodes James, Robert|
|Griffiths, E, (B'y St Edm'ds)||Rhys Williams, Sir Brandon|
|Griffiths, Peter (Portsm'th N)||Rifkind, Malcolm|
|Hamilton, Neil (Tatton)||Roberts, Wyn (Conwy)|
|Hampson, Dr Keith||Robinson, Mark (N'port W)|
|Hanley, Jeremy||Roe, Mrs Marion|
|Hannam, John||Ross, Wm. (Londonderry)|
|Hargreaves, Kenneth||Rost, Peter|
|Harvey, Robert||Rowe, Andrew|
|Haselhurst, Alan||Ryder, Richard|
|Havers, Rt Hon Sir Michael||Sackville, Hon Thomas|
|Hawkins, C. (High Peak)||Sainsbury, Hon Timothy|
|Hawkins, Sir Paul (SW N'folk)||Sayeed, Jonathan|
|Hawksley, Warren||Scott, Nicholas|
|Hayes, J.||Shaw, Giles (Pudsey)|
|Hayhoe, Barney||Shaw, Sir Michael (Scarb')|
|Hayward, Robert||Shelton, William (Streatham)|
|Heathcoat-Amory, David||Shepherd, Colin (Hereford)|
|Heddle, John||Shepherd, Richard (Aldridge)|
|Heseltine, Rt Hon Michael||Shersby, Michael|
|Hickmet, Richard||Silvester, Fred|
|Hicks, Robert||Sims, Roger|
|Hirst, Michael||Skeet, T. H. H.|
|Hogg, Hon Douglas (Gr'th'm)||Smith, Tim (Beaconsfield)|
|Holland, Sir Philip (Gedling)||Soames, Hon Nicholas|
|Hordern, Peter||Speller, Tony|
|Howard, Michael||Spence, John|
|Howarth, Alan (Stratfd-on-A)||Spencer, Derek|
|Howell, Ralph (N Norfolk)||Squire, Robin|
|Hunt, John (Ravensbourne)||Stanbrook, Ivor|
|Hunter, Andrew||Stanley, John|
|Hurd, Rt Hon Douglas||Steen, Anthony|
|Stern, Michael||Waldegrave, Hon William|
|Stevens, Martin (Fulham)||Walden, George|
|Stewart, Allan (Eastwood)||Walker, Bill (T'side N)|
|Stewart, Andrew (Sherwood)||Waller, Gary|
|Stewart, Ian (N Hertf'dshire)||Ward, John|
|Stradling Thomas, J.||Wardle, C. (Bexhill)|
|Sumberg, David||Warren, Kenneth|
|Taylor, John (Solihull)||Watts, John|
|Taylor, Teddy (S'end E)||Wells, Bowen (Hertford)|
|Tebbit, Rt Hon Norman||Wells, Sir John (Maidstone)|
|Thomas, Rt Hon Peter||Wheeler, John|
|Thompson, Donald (Calder V)||Wiggin, Jerry|
|Thompson, Patrick (N'ich N)||Wilkinson, John|
|Thurnham, Peter||Winterton, Nicholas|
|Townend, John (Bridlington)||Wolfson, Mark|
|Townsend, Cyril D. (B'heath)||Wood, Timothy|
|Tracey, Richard||Woodcock, Michael|
|Trotter, Neville||Young, Sir George (Acton)|
|Twinn, Dr Ian||Younger, Rt Hon George|
|van Straubenzee, Sir W.|
|Vaughan, Sir Gerard||Tellers for the Noes:|
|Viggers, Peter||Mr. Archie Hamilton and|
|Waddington, David||Mr. Michael Neubert.|
|Wakeham, Rt Hon John|
Question accordingly negatived.
I beg to move amendment No. 68, in page 6, line 4, at end insert—
'(a) direct that any interception in relation to the applicant should cease;'.
With this it will be convenient to take amendment No. 69, in page 6, leave out line 5.
In a sense, we have already had half this debate in relation to the tribunal and the Committee is well aware of the strong feeling among Labour Members, with a distant echo on other Benches, that there should be at least some parliamentary oversight.These amendments, especially No. 68, deal with the circumstances in which an application has been made to the tribunal and the tribunal, having considered the application, concludes that there has indeed been a contravention in relation to a particular warrant or a certificate. 6.30 pm In those circumstances, what is set to happen under the Bill? The Bill states that the tribunal shall tell the applicant that this is what happened and shall tell the Prime Minister that this is what has happened. What the Bill does not state is that the tribunal should have the authority to order that that illegal and illicit interception should cease. It is true that the clause goes on to say that the tribunal may order—or, indeed, may not—that the warrant or certificate be quashed. It may direct the destruction of any copies of intercepted material which have been obtained in breach of the certificate or warrant—or, indeed, it may even tell the Secretary of State to put his hand in his pocket and fork out some compensation to the person who has made the application to the tribunal. As the Bill stands, the tribunal could find that a tap or snoop was out of order, and could say so. But, as I understand the Bill, those breaches could continue in spite of that finding by the tribunal, in spite of its saying that it should not have happened and in spite of the Prime Minister being told, leading to another complaint from the same applicant—and so one would go round this crazy circle once more, which cannot be right.
I am sure that the hon. Gentleman would accept the proviso that if the tribunal directed that the warrant be quashed, but thereafter the tapping or interception continued, there would be a substantive offence under clause 1 capable of prosecution.
Yes, I understand what the hon. Gentleman says. One of the purposes of the amendment is to make it mandatory on the tribunal, where it finds that the tap or snoop has been illicit, to state that it shall cease. I take the hon. Gentleman's point. That is another route to it, but we believe that it will be more simply done as proposed in amendment No. 68.It cannot be right in our view to leave matters like this. If the intercept is in breach, the tribunal should be told explicitly to say to those who have been caught simply two words: "Stop it." If not, all the so-called protections which the Home Secretary in earlier debates prayed in aid for the tribunal are, if not quite useless, certainly a first cousin of useless. I ask the Minister to take one further step in relation to the tribunal by accepting the amendment so that the tribunal can have real effect and teeth by making it mandatory to order that unlawful intercepts will cease. I believe that this will go some way to reassure those many people engaged in lawful activities which challenge, or seek to change, the policies of the Government that the tribunal is properly there to guard against political misuse of the security services. That allegation was present in the "20/20 Vision" film "M15's Official Secrets". The allegation was made that telephones were tapped and mail intercepted to provide information to the DS19 unit at the Ministry of Defence which had been set up to counter CND's growing success in arguing for nuclear sanity. If the tribunal cannot order an end to interception where that has been found to be in breach of a warrant or certificate, the well-based fears of those properly engaged in these lawful activities, which are a healthy and thriving part of our democracy, will continue. Even if the Minister says that amendment No. 68 is defective in its wording, I hope that he can offer an assurance to the House that he will take on board what we are saying, and will seek to put the matter right at a later stage.
Despite the intervention that I made in the speech of the hon. Gentleman, I am sympathetic to what he has done. I do not believe that there can be any objection in principle to what is being contemplated, because the Bill as drafted provides for the quashing of the relevant warrant. Once the warrant has been quashed, any interception which is done pursuant to a quashed warrant must be unlawful and constitute an offence under clause 1.The problem is that the enforcement of clause 1 is dependent upon the Director of Public Prosecutions and his fiat. That will take time, and depends upon the discretion of the DPP. I tend to agree with what has been said from the rather thinly populated Opposition Benches. I think that the tribunal should have the power to issue a directive that the interception should cease. I therefore hope that my hon. and learned Friend the Minister of State will give sympathetic consideration to the amendment.
I am certainly not going to get involved in discussing the "20/20 Vision" film. I merely remind the hon. Member for Birmingham, Erdington (Mr. Corbett) that it really is time that the Opposition stopped talking about it, because it only highlights the fact that most of the misdemeanours, if they were misdemeanours, and most of the allegations, if the allegations were correct, related to the time when the hon. Gentleman's party was in power. It seems extraordinary that the Opposition should keep harping on about it.Let us come to the matter with which the Committee is concerned. The amendments, which were tabled at the time that other amendments were tabled, were clearly designed to extend the role of the tribunal. Only in that context do they make sense. Now that the amendments extending the role of the tribunal—for instance, into the field of unlawful interception—have been rejected, and the tribunal is to be concerned only with the warrant sections of the legislation and with the question whether interception taking place in pursuance of a warrant can be properly authorised, it is difficult to see how ordering interception to cease could have any different effect from that of quashing the warrant. Once a warrant has been quashed, the Secretary of State's authorisation has been overturned, and interception must cease.
Is my hon. and learned Friend quite right? I think that he is not. Once the warrant has been quashed, the interception, if it continues, becomes unlawful. That means that a prosecution can be commenced, but it does not mean that interception must cease. All he is saying is that it is a criminal offence, prosecutable on the fiat of the Director of Public Prosecutions.
That is precisely what I am saying. Once the authorisation of the Secretary of State has been overturned, interception cannot continue with the authority of the Secretary of State. Therefore, if it continues at all, it can continue only as a criminal offence. That is the way in which the system operates. Those carrying out the tapping would be guilty of a clause 1 offence and liable to conviction and punishment.
Let us assume that the interception continues after the quashing of the warrant, and the person affected by it becomes aware of it. Is there a jurisdiction for such a person to apply to the High Court for an injunction?
That is another matter entirely. I would have thought that we are talking here about the commission of a criminal offence, because the warrant has been quashed, and therefore the remedy of the person affected is to make a complaint to the police, after which prosecution can be initiated, with the consent of the Director of Public Prosecutions. We went over this matter yesterday. We debated whether it would be possible to have a system under which a private prosecution could be brought. We concluded that it would not be proper for a prosecution to be brought privately because, if prosecutions could be brought privately, prosecutions could be brought by villains for the purpose of discovering whether lawful interception had taken place. It is not a question of going to the High Court for a remedy; it is a question of a criminal offence having been committed and a prosecution then being possible with the consent of the Director of Public Prosecutions.I return to the amendment. Now that the role of the tribunal is limited to considering whether the Secretary of State has acted properly, there is nothing to be gained by changing the wording of the clause in order to substitute for the words "quash the relevant warrant" the words "interception … should cease."
I beg to move amendment No. 76, in page 6, line 20, leave out subsection (8).
With this it will be convenient to take amendment No. 125, in schedule 1, page 12, line 8, leave out from first `Tribunal' to the end of line 10.
As the Bill now stands, clause 7(8) seeks to prevent any decision of the tribunal being challenged in any court, including any decision as to the jurisdiction of the tribunal. The purpose of amendment No. 76 is, by deleting subsection (8), to allow decisions by the tribunal to be subject to the jurisdiction of courts.I have been puzzling about the reason for the subsection. I cannot think of any other tribunal that is totally exempt from appeal to the courts—
What about planning?
When I said that, I knew that there was bound to be a lawyer in the House who would correct me. I should be happy to have an example given to me. It is certainly extremely rare to have a tribunal that does not allow of any further legal scrutiny of its decision with regard to either points of fact or points of law. If the hon. Gentleman wishes to elucidate or give an example of the tribunal that he is thinking of, I am happy to give way to him.
As the hon. Gentleman will know, one can appeal against planning decisions on points of law, but not on points of fact.
I am not sure whether I am grateful for that intervention because it confirms what I said. I said that I cannot think of any tribunal where no appeal of any sort is allowed, even on points of law. On points of fact, that applies to quite a few tribunals, one of which the hon. Gentleman mentioned. I am asking hon. Members whether they can think of any other tribunal in which there is a restriction equivalent to the one that is the subject of the amendment. It is my contention that if there is one, it has not yet been brought to light by anyone with whom I have discussed the matter.As a principle, this is rather dangerous. All sorts of things may happen in the tribunal, and there is no possibility of challenging that in any way. No doubt one could appeal to the Minister and make it a political challenge, but by the very nature of the way in which the tribunal is established and the way in which it is likely to operate in conditions of at least some secrecy, it would be difficult to find a basis for such a challenge, politically, if there were no possibility of any court being allowed to challenge the tribunal's decision. 6.45 pm The Malone case gave rise to the Bill—or it was one of the elements that contributed to the Government's feeling that they had to introduce the Bill. That case has been quoted by several hon. Members in earlier debates. Nevertheless, it might help to remind the Committee that the Malone case involved Mr. Malone seeking a High Court declaration on whether his telephone had been lawfully or unlawfully tapped. Although he was unsuccessful, and the case was dismissed in February 1979, at the time the Vice-Chancellor said that telephone tapping "cries out for legislation." The cry was heard, but there was a certain amount of distortion. I cannot believe that in any court of law the Vice-Chancellor would say that telephone tapping "cries out for legislation" with the intention that there would be no possibility of judicial review of the tribunal's decisions. Therefore, we have not only a dangerous but an anomalous principle. The principles of natural justice may be denied by the way in which the tribunal operates. There is no redress against that. We can think of many examples of how a tribunal might function and of the decisions that it might make that would necessitate, in all justice, the possibility of an appeal against the decision of that tribunal. All those appeals are closed to us. I am not absolutely clear about the interpretation of this point, so no doubt the Minister will correct me if I am wrong. The Malone case resulted in appeal to the European Court. The subsection states that the decisions of the tribunal shall not be
I assume that that does not affect the European Court. I assume that "any court" excludes the European Court. If it does not, the restriction in the provision is even greater than I thought. Whether or not that is so, I am satisfied—and I am sure that the Committee is satisfied—that this will be difficult for the Minister to justify, and could lead to denials of justice and the tribunal not operating in the way in which other tribunals operate. Therefore, I hope that the Committee will accept the amendment."liable to be questioned in any court."
I have two brief points to make. First, the statement by the hon. Member for Battersea (Mr. Dubs) that this tribunal process is not subject to any review is too broad, because the Bill provides that copies of every tribunal report should be sent to the commissioner. That is not a fully fledged appeal; I do not pretend that it is. None the less, it is a process of review that has not been taken on board by the hon. Gentleman.The second point that we have to grasp is that the statutory grounds contained in clause 2 include sensitive material which may be relevant to the issues before the tribunal. The advantage of the tribunal process is that sensitive material can be disclosed and kept confidential. An appeal to the High Court or to a Divisional Court could not be so protected. One would have to have a very complicated apparatus and series of procedures to protect confidential material. I personally believe that it would be almost impossible to create a leakproof system of appeal if it involved an application to the court, because one needs an immense number of documents and a lot of people knowing a lot of facts who would not be subject to any of the ordinary rules of confidentiality. I suspect that the process would not remain immune from leak. That being so, I should not be able to support the hon. Gentleman should he press his amendment to a Division.
I believe that the amendment should not be supported. The establishment of the tribunal is designed to enable full consideration to be given to whether the procedures set out by the Bill — the requirements of law — have been observed, but the sensitivity of the sort of material that will have to be considered by the tribunal does not make it appropriate to consider those issues in open court.However, I have one anxiety about the provision in the Bill that seeks to exclude the jurisdiction of "any court" in these matters. That is that it should not, by indirection, deny to the citizen the right, protected by the European convention on human rights, to have these matters treated as justiciable. Clearly it is not the intention of the Bill to deprive the citizen of the due process of law which that convention guarantees. Indeed, it was part of the effect of the Malone judgment that our own process of law was found to be deficient. I cannot think that the European Commission or the European Court would regard its own jurisdiction as being in any way interfered with by the terms of subsection (8). However, it is conceivable that, if it were argued before that Commission that there had been a denial of justice of the kind suggested by the hon. Member for Battersea (Mr. Dubs), it could be held that there had been a violation of the convention giving the citizen the right to a remedy. It would be helpful if the Minister would address himself to that. This is a curiously difficult area because, although the findings in the Malone case held quite clearly that our provisions in this country were inadequate and did not provide judicial remedies, they did not spell out what would be necessary to satisfy the provisions of the European convention. That was addressed, however, in the earlier Klass case, in which it was held that the protection of the constitutional court, as well as the other administrative procedures which existed, gave a remedy and that it was possible to pursue a legal case against a Government for denial of fundamental rights and freedoms within the domestic courts of the Federal Republic of Germany. If the tribunal follows the procedures that it is intended it should follow, denial of justice would be a difficult case to make. A case would have to be made before the Commission that some of the procedures amounted to interference with the due process of law. Although I do not think that that is what is intended, it is important to have the Minister's confirmation that it is not, that it is intended that this will give a full and enforceable legal remedy and that the operation of the tribunal will be in accordance with the due process of law.
I will deal first with the matter of the European Court and assure the hon. Member for Battersea (Mr. Dubs) that there is nothing in the Bill that restricts the right to go to the Strasbourg Commission and Court in connection with breaches of the European convention. That is not the effect of this subsection.The short answer to the point made by the hon. Member for Caithness and Sutherland (Mr. Maclennan) is that, if there were an appeal to the High Court, there would be no point in having a tribunal at all. My hon. Friend the Member for Grantham (Mr. Hogg) referred to the possibility of leaks if a matter were dealt with by a court. With the greatest respect, that is not the essence of the matter. It is not just a question of a court's being leaky and, even if it tried to hold its proceedings in camera, of what happened before it became known to the general public. If a court had jurisdiction in these matters, there would be no question of its being able to proceed according to the laws of natural justice, because there could be no question of its being able to allow the complainant to know of the information which was the basis of the defence case. There has to be a tribunal because, if there were not one, the court would have to be required not to proceed according to the rules of natural justice. It seems to us infinitely preferable, in these circumstances, to have a tribunal rather than a court. Having had to have a tribunal because one could not allow the complainant, in the first instance, to go to a court, one could not possibly end up with a tribunal which has a special procedure which does not allow the complainant to know the evidence that is stacked against him, and then allow that same applicant to go on appeal to the court and discover that which one had been careful not to allow him to discover before the tribunal. That is why we must have a provision in the Bill excluding the jurisdiction of the courts. Without that provision, we should end up with the absurdity of the courts having jurisdiction to hear the appeal but having to have special rules of procedure. That really would not be right. The 1985 White Paper said:
That is why there has got to be a tribunal with these special procedures conducting its proceedings in private and not revealing to the complainant information passed on to it. I hope that with this explanation the hon. Member for Battersea will consider it right to withdraw his amendment."It would clearly be neither sensible nor acceptable to establish means whereby those involved in serious crimes or espionage could learn the basis on which their activities had come to notice; or—perhaps even more damaging—could in some cases confirm whether their activities had come to notice at all."
I am not totally convinced by what the Minister has said. He said that there would be no point in a tribunal if it were possible to appeal to a court.
What I said was that there would be no point in having a tribunal if the whole matter could be dealt with by the courts. If we had not come to the conclusion that the matter had to be dealt with in the first instance by a tribunal with a special procedure, we might as well have had the whole matter dealt with by a court, with a complainant of unauthorised interception going to the court. We cannot have that, for the reasons I have mentioned.
The difficulty is that the tribunal will operate in such a secret manner that no person who feels a sense of grievance will ever be able to establish whether the tribunal has looked at the evidence properly and considered it from an aggrieved person's point of view. So the Minister is right in saying that, since nobody will have any evidence that justice has been done, why bother about the courts?
That surely is absolute nonsense. One has only to look at the composition of the tribunal. People will be appointed to the tribunal by letters patent. Their office will be as secure as that of the Parliamentary Commissioner. They will be lawyers trained to make judgments in quasi-judicial matters such as this. Surely, in those circumstances, it is completely absurd to undermine the credibility of the tribunal from the start and suggest that anybody who made a complaint to it could not be satisfied that it would be properly looked into.
I have no wish to prolong the debate unduly on this point. The Minister's argument is that there will be worthy people on the tribunal, so nobody will have any reason to suggest that justice has not been done even if an individual with a sense of grievance has no information about the method by which the tribunal reached its decision, what evidence it had, and so on.Of course, we are in a difficulty because — I fully understand this — some of the information cannot be revealed publicly or to the person about whom there is a dispute. Nevertheless, that is not the same as saying that there ought in no circumstances, for any reason whatsoever, to be any right of appeal against the decision of the tribunal. We could speculate and put forward situations in which everything might have been as the Minister says it would be, yet we would be left with a feeling that there was something not quite right in the way in which the tribunal operated. Therefore, we could still have the feeling that, because there is no way of appealing against what the tribunal has decided, we just have to take it or leave it. I do not think that the Minister's assertions are an end to the matter. I think there are instances in which a right of appeal would be possible and sensible and would result in justice being done. But the Minister is adamant. I do not think that he has made his case, but perhaps we can return to this on another occasion. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7, as amended, ordered to stand part of the Bill.