Considered in Committee [Progress 2 April].
[MR. ERNEST ARMSTRONG in the Chair]
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.
I beg to move amendment No. 79, in page 6, line 38, leave out from beginning to `to' in line 40 and insert
'Her Majesty may by letters patent appoint a board of five members of Her Majesty's Privy Council which power shall be exercisable on an address presented by the House of Commons, and no motion shall be made for such an address except by the Prime Minister,'.
With this it will be convenient to discuss the following amendments: No. 83, in page 7, line 6, leave out subsection (2).No. 84, in page 7, line 6, leave out 'Commissioner' and insert 'Board'. No. 85, in page 7, line 13, leave out 'Commissioner' and insert 'Board'. No. 86, in page 7, line 13, leave out from 'as' to end of line 14 and insert
No. 89, in page 7, line 16, leave out 'Commissioner' and insert 'Board'. No. 91, in page 7, line 19, leave out 'Commissioner' and insert 'Board'. No. 94, in page 7, line 25, leave out 'he' and insert `they'. No. 97, in page 7, line 28, leave out 'Commissioner' and insert 'Board'. No. 99, in page 7, line 29, leave out 'his' and insert `their'. No. 103, in page 7, line 33, leave out 'Commissioner' and insert 'Board'. No. 104, in page 7, line 35, leave out 'Commissioner' and insert 'Board'. No. 120, in Clause 11, page 10, line 12, leave out `Commissioner' and insert 'Board'.`they may require for the purpose of enabling them to carry out their functions under this section'.
The purpose of the amendments is to make two important changes to the way in which the Secretary of State's functions, when carrying out his responsibility to issue warrants for the interception of communications, is reviewed. The way in which these functions have been carried out in the past has caused public disquiet. We want to ensure that Secretaries of State responsible for authorising interception act in accordance with the highest traditions of probity and legality.Earlier, we considered Parliament's role. I have said that I do not think that Parliament, either through a Select Committee or by any other means, can review such matters if an investigation into the Executive's conduct in the day-to-day operations of the security services is involved. However, Parliament has an overriding responsibility to ensure that a proper review is conducted. Parliament cannot be satisfied with the appearance at the Dispatch Box of a Prime Minister announcing the setting up of an inquiry or giving a general assurance after a breakdown. The principle in clause 8 that the commissioner should be responsible for reviewing the conduct of Secretaries of State is sound. However, Parliament itself, rather than the Prime Minister, as head of the Government and head of the security services, should be able to appoint the commissioner. Parliament and the public will he more satisfied as to the competence, probity and tenacity of the body entrusted with that function if Parliament has indicated who it prefers to carry out that task. The method of appointment which I propose is that which is followed by Parliament when it appoints the Comptroller and Auditor General, although that appointment is subject to the agreement of the Chairman of the Public Accounts Committee. I do not suggest that the appointment of a board of five Privy Councillors should be subject to the approval of any individual Member of Parliament or of any Select Committee. The appointment should be subject to the approval of the House as a whole. There is a precedent for such a mode of appointment. I believe that Parliament would welcome such a method, because it entrusts hon. Members with the task of choosing five suitable Privy Councillors to exercise the commissioner's role. The five need not necessarily be members of the Commons, or of the Lords, but Parliament would probably think it appropriate that those who had held high office and had issued warrants for the interception of communications would be suitable to consider whether Government practices are appropriate and whether they conform not only with the law but with good administration. The five Privy Councillors would be better suited to carry out that function than would a judge. I regret that the public no longer perceive judges in the way that they did 10 years ago. Judges are independent. High ranking judicial officers are men of independence and great public spirit, but, because of the change in the public's perception of the judiciary, a judge is no longer regarded as totally independent of the Executive. That change in public opinion is measured by the popular public opinion polls. A recent Gallup poll drew attention to the changed perception of the independence of judges. Because of that, a judge is not necessarily the right person for the task of overseeing senior Ministers. The problem is increased because the appointment is to be by the Prime Minister, who has overriding responsibility for security. There should be a disjunction between the Prime Minister's responsibility for security and the appointment of the person whose continuing task is to oversee the conduct of the Prime Minister and Secretaries of State. It is right that the Prime Minister's voice should be heard. Amendment No. 79 provides for an address to be presented by the House of Commons and states:
The Prime Minister will have a substantial voice in the nominating process, although the appointment by Her Majesty by letters patent of five members of the Privy Council will be done on the basis of an address by the House of Commons. The independence of the five Privy Councillors can be assured by the obvious need to maintain a balance for ensuring that the task of oversight is not carried out by a single commissioner. I believe that the appointment of Lord Bridge and his conduct of the recent inquiry into Cathy Massiter's allegations were extremely unfortunate. He was unwise to take on the task. It was impossible to reassure the public by discharging the task in that way. The fault lies with the Prime Minister for having asked Lord Bridge to take on the task, but Lord Bridge was unwise to accept it. That point has been forcefully expressed by my right hon. Friend the Member for Glasgow, Hillhead (Mr. Jenkins)."no motion shall be made for such an address except by the Prime Minister".
The matters that had given rise to public anxiety could not conceivably have been investigated properly or in depth in a weekend. The terms of reference of the inquiry were so narrow that they excluded many of the matters that had given rise to public anxiety. That is why Lord Bridge made himself appear to be a tool of the Executive.
In fairness to Lord Bridge, is it not right to say that, as the present monitor, he was given a narrow brief, and therefore was unable to delve into the matters which some people would have liked him to investigate? Surely Lord Bridge's integrity, ability or judgment cannot be questioned on that basis.
The hon. Gentleman seeks to defend Lord Bridge's ability, integrity and judgment. I did not attack Lord Bridge's ability or integrity, but I did attack, and shall persist in attacking, his judgment. It was extremely unwise for a high-ranking judge to take on such a duty. It was an embarrassment to the Bench. I believe that the point has been well made and that it need not be laboured. It was not just unwise for Lord Bridge to take on that task; it would have been unwise for any judge to do so. It was peculiarly unwise for Lord Bridge to take on the task, because of his continuing responsibilities. He was asked to judge the effectiveness with which he was conducting his continuing scrutiny of public matters.
The hon. Gentleman is totally misguided and unfair. Lord Bridge is the judicial monitor who is responsible for these matters. Surely he was the obvious judge to carry out the task. It would have been wrong for Lord Bridge to decline to carry out that task, which the Prime Minister asked him to perform. He was asked to review the interceptions that were made in previous years to confirm that they accorded with proper principle in the carrying out of individual warrants. Surely, because of his position, Lord Bridge was the one person who was qualified to look at that matter, although I agree that he was given limited scope. It was not his fault that he had limited scope. If the right hon. Member for Glasgow, Hillhead (Mr. Jenkins) was correct to criticise Lord Bridge, why did he happily agree that interceptions during his period of office should be investigated by Lord Bridge?
My right hon. Friend the Member for Hillhead had nothing to hide, nor, I assume, did other right hon. Members who had held high office. The right hon. and learned Member for Warrington, South (Mr. Carlisle) shows a strange insensitivity to public opinion in believing that those who were concerned about the way in which those powers had been exercised could have been satisfied by appointing Lord Bridge and giving him what the right hon. and learned Gentleman admitted was an extremely restricted remit which had to be carried out in about four days. That is a matter of judgment. My judgment is that Lord Bridge not only failed to reassure public opinion, but damaged the independence of the Bench by putting himself in a position where he had to carry out the Prime Minister's will.With that case in mind, I believe that the proposal that a review should be conducted by a single judge is no longer an adequate way of dealing with a continuing problem. I say that with regret, because in the past that proposal might have commended itself to hon. Members. A decade ago, hon. Members might have thought that a senior member of the Bench would be an entirely appropriate person to carry out the task because of his independence of mind and character. There is a further important reason why I believe that the appointment of a judge is inappropriate—
How many more minutes?
The hon. Gentleman is not obliged to remain in the Chamber in a semi-comatose posture if he finds the debate uninteresting.
Order. May I make it clear to the Committee that I deplore seated interventions. Hon. Members must either be quiet or seek to intervene in the normal way.
There is a further reason why I believe that a judge is not the appropriate person to conduct this continuing review. It is that the judge is not being asked to discharge a judicial role. He is being asked to scrutinise the conduct of certain senior members of the Executive in difficult matters. Judging whether actions are properly undertaken is not a matter of evaluating the law and ascertaining whether regulations have been followed entirely. The Home Secretary has told us that it is a matter of considering whether discretions have been properly exercised. That is not best done by legal analysis, or even by judicial analysis. It would be much better if it were done by those who had had to exercise such judgments for themselves. When an issue of national security is at stake, it would be better if the evaluation of whether the Secretary of State made a decision correctly was carried out by someone who had previously had to evaluate whether the interests of the security of the state would be harmed by not authorising a telephone tap.There is a powerful case for ensuring that the scrutiny of the functions of Secretaries of State is conducted not by an individual but by several people whose seniority is such that they have some experience of the conduct of such matters and whose judgment has been proved in the House of Commons to show that they are fit to hold high office. Privy Councillors are conscious of the needs of security and absolute secrecy in accordance with their oaths. The parliamentary responsibility for oversight is not finally discharged by ensuring that that body shall be appointed by the letters patent procedure. It is appropriate that the board of five Privy Councillors should be answerable to the House. The provision in the Bill is a little short of what is required, and we may wish to return to this matter later. There is a case for the report of the commissioner being considered by a Select Committee, whose findings might be suitable for report to and debate in the House. Whether or not we go down that route, the House will feel greater satisfaction if it is acting upon the report of a board of five Privy Councillors, rather than on the advice of a single commissioner appointed by the Prime Minister.
I have listened to speeches by the hon. Member for Caithness and Sutherland (Mr. Maclennan) not only on this Bill but on what is now the Data Protection Act, when he, my hon. and learned Friend the Minister and I served on the Committee. I have often found the hon. Gentleman's observations to be lucid and helpful, but I regret that on this occasion I must say that I have never heard such nonsense—
And at such length.
Indeed, as my hon. Friend reminds me, it was a long speech.There are two points on which I fundamentally disagree with the hon. Gentleman. I profoundly disagree with his uncharacteristically jaundiced view of the independence of the judiciary, and especially his unwarranted attack on Lord Bridge. There may have been an argument for widening the scope of the inquiry which the Prime Minister asked Lord Bridge to conduct, but that is a matter for debate elsewhere and on another occasion. There can be no doubt that at all times Lord Bridge fulfilled the warrant that had been given to him by the Prime Minister and that he discharged it, as far as we are aware, as well as could be expected. The hon. Gentleman prefaced his attack on Lord Bridge by suggesting that a Gallup poll had indicated that esteem for the judiciary was on the wane. That might, in part, arise from the number of unreasonable attacks by Opposition Members on decisions by various members of the judiciary during the mining dispute. I do not believe that any responsible person has any lower opinion of the judiciary now than that which he has held for many years. Clause 8(1) refers to the appointment of the commissioner as
There would be few of us in this Committee who could not think of a number of eminent judges, or former judges, who would not be entirely suitable to fulfil that description. Therefore, I entirely reject the notion that such a person would be unsuitable to carry out the functions of the commissioner. The hon. Gentleman spoke about the desirability of divorcing the Executive from the judiciary in the authorisation of interceptions. I agreed with him yesterday that some divorcing of Executive and judiciary functions, both of which are elements of the authorisation of interceptions, was not only desirable, but that the absence of such a mechanism was a major defect of the Bill. I very much regret that the Committee chose not to approve the amendments that I tabled seeking to effect that divorce of functions. Therefore, the hon. Gentleman's amendments do not achieve the objectives that he has set himself. Amendment No. 79 requires us to"a person who holds or has held a high judicial office."
The hon. Gentleman appears to want to substitute the five Privy Councillor members of the board for the commissioner. As my right hon. and learned Friend the Member for Warrington, South (Mr. Carlisle) reminded us, as members of the Privy Council they could all also be senior judges. The hon. Gentleman wants to replace the commissioner with that body, not only in respect of the first function, which is"leave out from beginning to 'to' in line 40 and insert 'Her Majesty may by letters patent appoint a board of five members of Her Majesty's Privy Council which power shall be exercisable on an address presented by the House of Commons, and no motion shall be made for such an address except by the Prime Minister,'."
but also the second function, which is"to keep under review the carrying out by the Secretary of State of the functions conferred on him",
It is unreasonable to move such an amendment when, implicit in the clause, are functions which can be carried out only by an individual. If the hon. Gentleman had moved an amendment to delete the first three words—"The Prime Minister" — and to substitute "Five Privy Councillors", thereby suggesting that it should be the five Privy Councillors who appointed the commissioner, I would have had more sympathy with the amendment. I believe that on those two fundamental grounds the hon. Gentleman's amendments are unworkable. One of the functions referred to in clause 8(1)(a) is to keep under review clauses 2 to 5 of the Bill and the manner in which they are exercised. They include the definition of the only crucial part of the Bill where the commissioner will have to exercise discretion, and that is in the matter of the definition which my hon. Friend the Member for Grantham (Mr. Hogg) brought to our attention yesterday. My hon. Friend rightly suggested that the real difficulty in interpreting the Bill was that of defining precisely what is meant by the three grounds on which warrants are to be authorised. The commissioner, or the Privy Councillor body, will have the role of interpreting those criteria. The Committee had the opportunity to give a precise definition, but in its wisdom decided not to exercise that option. I believe that all the amendments in this group would be unhelpful to the cause which in many ways the hon. Gentleman seeks to espouse, so I ask my hon. Friends to reject them."to give the Tribunal such assistance as the Tribunal may require."
We thought that we might lose the vote on the amendment which my right hon. Friend the Member for Manchester, Gorton (Mr. Kaufman) moved on Select Committee control. We then looked closely at this amendment and, because it seemed to call for a degree of parliamentary control, we were not unsympathetic to it.Then I heard the speech proposing the amendment by the hon. Member for Caithness and Sutherland (Mr. Maclennan), which came close to dissuading me from supporting it. I had to re-read amendment No. 79 to make sure that I could still feel sympathetic towards it. I keep a list of solicitors and barristers whom I would pay not to defend me. He is now on that list. He made out about the worst possible case for the amendment that could be made. It is nonsense to describe the situation in the way that the hon. Gentleman described it. In one breath he wanted parliamentary control and, in the next, he wanted that control to be exercised by Privy Councillors who were not even in the Houses of Parliament. What troubles me so much about the Social Democrats and Conservative Members is that they end up distrusting Parliament. The Labour party says on this issue that we should be giving more control to hon. Members because Parliament, through the Home Secretary and the Prime Minister, controls the security services. What, then, would be the point of bringing in Privy Councillors from outside Parliament? A case could, I suppose, be made out for Privy Councillors doing the job. I would rather have the control done by way of Select Committee, as we said earlier. Failing that, a case could be put forward for Privy Councillor control. Whatever case might be made for that, the case adduced by the hon. Member for Caithness and Sutherland was extremely poor. Nevertheless, the hon. Gentleman's amendment would allow for a degree of parliamentary control, and I have in mind the words of the amendment rather than the hon. Gentleman's words that will appear in the Official Report. We are not unsympathetic to his idea, although it is far from a good amendment. We challenge the Government to say what degree of parliamentary control will be exercised over the interception of communications as proposed in the Bill when all that we shall have is a continuation of the present system, with the Home Secretary and Prime Minister doing it. I pointed out earlier that, with the best will in the world, no Prime Minister or Home Secretary can give sufficient time and attention to all the workings of the tribunal, the commissioner and the others involved to ensure the control that the public rightly seek. As I said in the debate on the last amendment, people in almost every other country in the western world have, and expect, that sort of control. That is what we seek. The amendment represents a poor second best—made worse by the way in which the hon. Member for Caithness and Sutherland moved it — but at least it would give an element of parliamentary control.
I am a kindly chap and it is not my habit to rub salt into wounds. After the demolition done by my hon. Friend the Member for Oxford, East (Mr. Norris), it is not necessary for me to say much. We have spent an inordinately long time on a completely worthless amendment which was introduced in an extraordinary way by the hon. Member for Caithness and Sutherland (Mr.Maclennan), whom I admire and with whom I am often forced to agree. On this occasion, however, he presented a ludicrous case. The hon. Member for Caithness and Sutherland said, among other things, that the public's perception of the independence of the judiciary had declined. I agree with my hon. Friends who said that it was about time that we in Parliament made it plain that there was no justification for any loss of confidence in our judiciary, for we know how independent they are. In considering, for example, the monitor, now the commissioner, it is ludicrous to say that there should be a different method of appointment or he would not be respected as independent. We are talking about somebody, in the case of the present monitor, who holds high judicial office. It is ridiculous to say that it is necessary to have another form of appointment to persuade the general public that such a man is prepared to perform independently. It was preposterous for the hon. Gentleman to say that it had been unwise for Lord Bridge to take on the job that he had been asked to do. Far too many people have deliberately set out to confuse the public about the task that was given to Lord Bridge. That task was purely to see whether warrants issued by the Home Secretary had been properly authorised, according to the guidelines. It is clear that that task was entirely appropriate for somebody who, for more than a year, had been exercising the role of monitor and had a knowledge of the way in which the system worked. He was the obvious person to carry out the task. It is shaming that members of the hon. Gentleman's party should have made press statements and comments in Parliament denigrating a fine public servant who, on this occasion, was rightly prepared to carry out a task which he had been asked by the Prime Minister to perform. The essence of the case put forward by the hon. Member for Caithness and Sutherland was that the role was one not for a judge but for a board of Privy Councillors. What absolute rubbish. The commissioner is the successor of the monitor, whose post has been in existence sice 1980. His job is to keep under continuous review the way in which the Secretary of State carries out his duties. He can go where he likes and see what material he likes. It is a policing role carried out by someone who commands public confidence, who is absolutely independent, who has an experienced legal mind and who can act independently and decisively. The work which I have just described is not work for a committee of any sort. We are not talking about a committee of inquiry designed to produce recommendations about an incident. We are talking about a continuing review of the exercise of discretion and all of the associated administrative procedures. It is ludicrous to say that such a role could be carried out by a committee. In those circumstances, with great confidence I invite the Committee to reject the amendment.
I listened carefully to the slender arguments adduced by the Minister and the hon. Member for Oxford, East (Mr. Norris) and to the patently malignant remarks of the hon. Member on the Opposition Front Bench, the name of whose constituency eludes me. [HON. MEMBERS:" Hammersmith"]. I refer, of course, to the hon. Member for Hammersmith (Mr. Soley).
Perhaps it would be advisable for the hon. Member for Caithness and Sutherland (Mr. Maclennan) to come nearer the Opposition Front Bench so as more easily to see the hon. Member to whom he is referring. Otherwise there may be much confusion in the Official Report about who said what.
Only one Labour Member has deigned to speak on the amendment. I am sure that Hansard will not have any difficulty in determining who that hon. Member was. His reputation, in any event, runs before him.The Minister allowed his attitudes to be put forward as a substitute for reason on this occasion. I regret that, because he is a thoughtful man who normally listens to argument and does not take refuge in words such as "preposterous," as he did on this occasion. The Minister, like his hon. Friend the Member for Oxford, East, failed to analyse the function of the commissioner. It is not a judicial function in any sense. It is not a function of evaluating evidence and reaching a verdict. It is that of conducting a continuing inquiry into Executive activities. I do not believe that judges are the right people to carry out that type of inquiry at that level. The Minister did himself less than justice in being so dismissive of the possibility of a committee of Privy Councillors being the appropriate body to conduct a continuing inquiry. When it suits the Government, that is precisely what they set up. They established a committee of Privy Councillors to look into the conduct of the Falklands campaign. It was analogous, and involved high executive decisions taken by Secretaries of State on issues of national security. It was precisely the sort of matter in which it would have been wrong to ask a judge to intervene. It is far more appropriate for someone of the calibre of Lord Franks or the right hon. Member for Morley and Leeds, South (Mr. Rees) to conduct such an inquiry. An inquiry by Privy Councillors into matters that touch on national security would carry weight. That is what we seek to ensure. The review of the exercise of the functions would be seen by the public and Parliament to carry weight. I must retract one of my remarks about Lord Bridge. I have no criticism of his abilities or his public-spiritedness. He is an eminent man, who has reached his eminence through the demonstration of his qualities of character and mind. However, it was a mistake to give an individual judge such a task. It was the Government's mistake. It was a mistake for a judge to seek to discharge that role. Lord Bridge made that mistake. It would be a mistake for a judge to accept the role of commissioner under the terms of clause 8. However, if Parliament wishes and prefers to entrust that task to a judge than to a committee of Privy Councillors, no one will quarrel with that. I must confront head-on the Minister's allegation that I was contributing to undermining the public's esteem of the Bench. That is a complete misconception. I specifically said that I believed that the judiciary was independent, and was properly regarded as such. However, I must draw attention to changing public opinion, and Ministers who are not aware of it are simply out of touch. The Minister should not seek to turn the charge against me. As a lawyer I have nothing but admiration for the Bench, its independence, integrity and public-spiritedness. I regret that the Minister thought that his weak argument would be bolstered by making a personal accusation of that kind. It was uncharacteristic and I hope that, on reflection, he will regret it.
I beg to move amendment No. 82, in page 6, line 42, leave out from first 'the' to 'and' in line 2 of page 7 and insert
`matters referred to in sections I and 6 above'.
With this it will be convenient to take the following amendments: No. 90, in page 7, line 19, leave out subsection (5) and insert—
'(5) If at any time it appears to the Commissioner that there has been a contravention of sections 2 to 6 above which has not been the subject of a report made by the Tribunal under section 7 above he shall refer the matter to the Tribunal for investigation under that section.
No. 92, in page 7, line 20, after 'that' insert(5A) If at any time it appears to the Commissioner that any arrangements made for the purposes of section 6 above have proved inadequate he shall make a report to the Prime Minister with respect to those arrangements.'.
No. 93, in page 7, line 20, leave out '2' and insert '1'. No. 96, in page 7, line 26, after 'that', insert 'offence or'. No. 100, in page 7, line 30, at end insert'an offence under section I above has been committed or'.
No. 101, in page 7, line 30, at end insert`nothing shall prevent the Commissioner from reporting upon any matter which he considers to be connected to the matters referred to in sections 1 to 6 of this Act, nor from making recommendations for the better regulation of the matters referred to in this Act'.
No. 106, in page 7, line 40, at end add`that report shall enumerate the number of occasions on which it appears to the Board that there has been a contravention of sections 2 to 5 above'.
No. 108, in page 7, line 40, at end add—'which exclusion may not remove the enumeration of the apparent contravention of sections 2 to 5 above referred to in subsection (6) above'.
'(9) Where it seems appropriate to the Board and following consultation with the Prime Minister, the Board may report to the Tribunal its opinion that there has been a contravention of sections 2 to 5 above. On such a report the Tribunal shall notify any person who would in its opinion be entitled under section 7(2) to apply to the Tribunal for an investigation that it has received such a report from the Board.'.
These amendments deal with the powers of the commissioner. I shall refer specifically to amendments Nos. 82, 93 and 100. All the amendments seek to widen the role and the functions of the commissioner.Amendment No. 82 seeks to give the commissioner a wider role than that envisaged in the Bill. He would not merely supervise the Secretary of State in complying with the procedural requirements of the Bill, but would have the power to review the entire area of the interception of communications. He would also have a responsbility to review the extent of unauthorised interception which is not covered in the present arrangements for the commissioner's powers. Amendment No. 93 would oblige the commissioner to report on any unauthorised or inappropriate interceptions which have been discovered, apart from any which may have been reported to the tribunal. Amendment No. 100 is intended to strengthen the role of the commissioner so that he could act as a watchdog over all operations which involve the interception of communications. It mould allow the commissioner to review and comment on connected or related matters such as the visual surveillance of individuals or the infiltration of organisations. Why is it necessary for the commissioner to have wider powers than those envisaged in the Bill? I shall give some examples to justify the wider powers. I shall deal with an incident that occurred a couple of weeks ago near my constituency, which is directly relevant to the amendments. The South London Hospital for Women and Children had been occupied by many women protesting against its closure. They had made contacts in the locality with many friendly people whose telephones they could use in their flats or houses, and where they went for cups of coffee. Those telephone numbers were on a list which the people occupying the hospital had made available. As a result of a court order obtained by the district local health authority, the police went in one night and removed the protesters. On that evening four of the telephones in the neighbouring flats which had been part of the support system for the women occupying the hospital went out of action until the morning and then, miraculously, they started to work again. Hon. Members must decide whether that was a coincidence. However, I suggest that it is stretching the arm of coincidence too far for that to have occurred merely through a malfunctioning of the telephone system. Either the telephones were being intercepted and it was decided on the night when the police removed the protesters that to stop any support being marshalled it would be better to put the telephones out of order, or they were put out of order as part of a process of interception. It may have been a pure coincidence that four telephones went out of order. Other telephones may also have gone out of order, but I have not had time to check on that. I heard about the matter when people telephoned me to tell me what had happened. I would like the commissioner to have the power to look into such an incident, and to be able to investigate such interception or interference with the telephones of ordinary people. At present there is no way in which people who feel their telephones have been interfered with have a right or the ability to have those wrongs redressed. If a commissioner had that responsibility, he could investigate and discover whether it was a coincidence or a deliberate attempt to undermine the ability of those women to telephone for more support on the night in question. However, if the events relating to the closure of the hospital were an isolated incident, one could say, "All right, it happened once". We know well that whenever a cruise convoy leaves Greenham common heading westwards through Newbury towards Salisbury plain those people who are monitoring the movements of that convoy—this debate is not the occasion to go into the merits of that activity, but it is legal —and who telephone one another or who would like to to say that the convoy is heading down a road find suddenly that their telephones cease to function. There is no way in which that type of interference, which is what I allege it is, is within any of the terms of reference or the parameters which have been laid down by the Home Secretary or are suggested in the Bill.
Perhaps I misunderstand what the hon. Gentleman has said, but surely what he is saying, if it be right, would be a matter for the tribunal rather than the commissioner. I thought that the tribunal was there to judge as the body to which the individual could go. As I understand it, the commissioner is more a judicial monitor. Although I do not accept the hon. Gentleman's argument that it is necessary to expand the role in the way he put forward, if it were, surely it would be the tribunal rather than the commissioner.
I understand what the right hon. and learned Gentleman is saying. We are in some difficulty because the amendments seek to widen the role and functions of the commissioner and I therefore have to illustrate that predicament. As the Bill is at present drafted, it is unlikely that the incidents to which I have referred would be appropriate for the tribunal, because it would be argued that they do not necessarily represent interception of telephone communications so much as interference with or prevention of them. That being so, the amendments allow the commissioner to consider the wider question rather as some of us had hoped Lord Bridge would consider the wider question. I take the right hon. and learned Gentleman's point. It might be logical, if my argument were to be accepted, that one should also consider the functions, responsibilities and terms of reference of the tribunal and similarly to widen those responsibilities as I am seeking to widen those of the commissioner.If the Minister were to accept the argument—I do not know that he will, even in the genial mood in which he is this evening—we could sort out the details on Report. There is a gap in the legislation and it is that gap to which I am drawing attention. I shall return to the example of Lord Bridge which relates to the amendment. In a sense, the responsibility given by the Prime Minister to Lord Bridge recently in the context of anxiety about the "20/20 Vision" film about MI5 was narrow. I am not seeking to criticise Lord Bridge for the way in which he carried out his task. His terms of responsibility were so narrow that the conclusion to which he came was so inevitable that it was hardly worth his while carrying out the task. All he said was that no warrant for interception had been issued in contravention of the proper criteria, but the point about the "20/20 Vision" film and the amendments in relation to the commissioner are that other things may happen which are not directly and simply a matter of the precise way in which the Home Secretary has authorised an interception. Clause 8(1)(a) states in relation to the functions of the commissioner:
It is a matter there of saying, "Is the Home Secretary carrying out the functions as he should?" There was a clear implication with the "20/20 Vision" film not that the Home Secretary, or successive Home Secretaries, had authorised some of the things that the film revealed, but that they had been carried out without any authorisation. That is the difference. If Lord Bridge had been given different terms of reference, he might well have been able to come up with conclusions relevant to the charges made in the film. There are three matters which are relevant to the amendments. Lord Bridge should have been asked to answer the following three questions. First, did the interceptions and other forms of surveillance shown in the film take place? After all, the film was a matter of allegations. Secondly, who authorised them? Thirdly, if they were not authorised, how did it come about that any of them were carried out in an unauthorised manner? If those three questions had been answered, we should have had a longer and much more revealing report, although it would have taken Lord Bridge longer to investigate. In the amendments, I am seeking to establish wider terms of reference which would allow the commissioner, if on any future occasion allegations were made similar to those in the MI5 film, to carry out the task which many of us hoped that Lord Bridge would have been able to carry out. It is a matter of the terms of reference. I have conceded the right hon. and learned Gentleman's argument about the terms of reference of the tribunal, but, nevertheless, I should like to feel that if there were unease in the future the commissioner could study the whole range of allegations, because unless allegations are investigated how can any of us be satisfied that the events that we have been told about have been happening? As the Bill now stands, we may have further MI5 films and further investigations by the commissioner along the lines of the Lord Bridge inquiry, and none of us will be happy that the truth has come out. The Minister owes it to the House and, obliquely, to Lord Bridge and to whoever will be appointed commissioner to modify the Bill. I hope that that will be done by accepting these amendments so that the type of anxiety that I have expressed will not be felt in the future."to keep under review the carrying out by the Secretary of State of the functions conferred on him by sections 2 to 5".
I should like to speak to amendments Nos. 92 and 96. I shall anticipate the criticism that is likely to be made by my right hon. and learned Friend the Member for Warrington, South (Mr. Carlisle) and say that the amendments are mirrored by amendments Nos. 63 and 75 which I tabled previously with respect to the tribunal's powers.The purpose of amendments Nos. 92 and 96 is similar to that which the hon. Member for Battersea (Mr. Dubs) sought to achieve. It is desirable that the, commissioner should be empowered to determine whether an offence has been committed under clause 1. That is a jurisdiction which I wish to give to the tribunal as well. On reading the Bill, it seemed that the commissioner, as is also the case with the tribunal, is empowered to consider almost anything other than whether a substantive offence under clause 1 has been committed. The commissioner receives the tribunal's report. He determines whether the Home Secretary is acting within the scope of the jurisdiction conferred on him by clause 2. The commissioner is empowered to determine whether the time limits have expired or have not been adhered to. He is empowered to determine whether the Home Secretary has complied with the procedure necessary to obtain a warrant. They are all proper matters for the commissioner to determine, but the one matter which he is precluded from determining is whether there has been unauthorised tapping, which is an offence under clause 1. For the life of me I cannot understand why the commissioner, who receives information which discloses prima facie evidence of an offence under clause 1, should not be empowered to say, "This is my conclusion." Indeed, there are powerful reasons why he should. This is an infringement of the liberty of the subject. It is a criminal offence. At the discretion of the DPP, it is prosecutable. Why should not the commissioner draw the commission of an offence to the attention of the Prime Minister in the course of his report? He should do so. I would be very pleased if my hon. and learned Friend the Minister of State could accede at least to the spirit of the amendment.
I rise to support the amendment in the name of the hon. Member for Grantham (Mr. Hogg). He has deployed his arguments with brevity and cogency and I will not animadvert further upon them. I should like, however, to commend to the Committee amendment No. 90 in the name of my hon. Friends and myself.As the Bill is drafted, the procedures for investigating contraventions are somewhat inadequate. Only the tribunal will be able to investigate complaints by the public under the terms of clause 7(2), and neither the commissioner nor the Prime Minister seems to have any obligation to inform the tribunal of contraventions found by the commissioner. Someone whose communications have been wrongly intercepted may never know or suspect what has happened. As such contraventions cannot be considered by the ordinary courts or, under the terms of clause 9, even referred to in them, the commissioner should have an obligation to refer all contraventions to the tribunal. Amendment No. 90 is designed to ensure that that should happen. It will also require the commissioner to have regard to the safeguards in clause 6 in deciding whether there had been a contravention. The commissioner would only report to the Prime Minister on the adequacy of the safeguards, as he or she would receive reports from the tribunal of its findings on any contraventions under clause 7(4).
The Opposition amendments and those of my hon. Friend the Member for Grantham (Mr. Hogg) give the commissioner a role other than that provided for in the scheme of the Bill. The amendments tabled by the hon. Member for Caithness and Sutherland (Mr. Maclennan) and his hon. Friends deal with a different point, but one that is also important. I promise not to be rude to the hon. Gentleman again.The commissioner's role is to undertake from within a continuing review of everything concerned with authorised interception. That is often forgotten. His role is to ensure that warrants have been properly authorised. That task is entirely appropriate for a senior judicial figure and is one that a single person can effectively undertake. Offences against the criminal law, on the other hand, are a matter for the police. What is the commissioner supposed to review in connection with clause 1? Is he supposed to supervise the adequacy of investigations or to become the recipient of allegations of criminal conduct that should be made to the police? I do not know. The commissioner has manageable duties under the Bill. How could he look into the operation of clause 1? His task is within Government. He has to consider whether, when the Secretary of State has authorised a warrant, he has done so correctly. It is not the commissioner's job to roam the country asking people whether they have heard funny clicks on their telephone lines. I am not being frivolous. If the commissioner's job is other than to work within Government to make sure that when the Home Secretary issues a warrant he does so properly, what is his job? Is he to wander round the country in an investigative role? If so, is he the appropriate person to carry out that role? Is he to consider the way in which the police investigate offences? That would not be appropriate. Is he to be the recipient of complaints from members of the public that they think their wires have been tapped? That, again, would be inappropriate. That is a job for the police. I do not think for a moment that the commissioner could investigate the operation of clause 1. We should not muddle inquiries into offences, which are one distinct matter, with the duties of the commissioner, which are another. My hon. Friend the Member for Grantham has raised — not in his own speech — a different point. What should happen if by chance, while carrying out his duties, the commissioner came across unlawful interception? Clearly, we in no way accept the implication that public servants will engage in unlawful interception contrary to clause 1. It is inherently unlikely that the commissioner will come across unlawful interception in the course of his duties, as his duties are undertaken within the Government, ascertaining whether the Secretary of State has issued warrants properly according to the guidelines. In the unlikely event of his discovering that there has been unlawful interception, the commissioner is hardly likely not to bring to the attention of the authorities such evidence of an offence as he has discovered. In that respect, he would behave no differently from any other responsible person to whom evidence of an offence became available. Amendment No. 101 stipulates that the commissioner's report should state the number of occasions when clauses 2 to 5 had been contravened.
I did not speak to amendment No. 101 because I assumed that it had fallen with an earlier amendment to which I spoke. However, I would be grateful for the Minister's remarks on it.
I do not wish to speak for longer than necessary. Unless the hon. Gentleman particularly wants me to deal with that amendment, it would be more profitable for me to deal with matters about which hon. Members have shown concern.Other amendments in the group suggest that the commissioner should report to the tribunal matters that have apparently not come to its notice, that the tribunal should then notify the person or persons concerned, and that the commissioner should report to the Prime Minister about any arrangements under clause 6 that he considers inadequate. There are considerable practicable difficulties in what is suggested. The tribunal is not supposed to substitute its own views for those of the Secretary of State, but rather to consider whether he has acted reasonably. The commissioner would be looking for cases in which something had gone wrong with the system. For instance, there might be a case in which the Home Secretary had acted reasonably but in which subsequent events had cast doubt on the reliability of the sources of his information. The commissioner will be able to question the wisdom of the issue of particular warrants without disputing the reasonableness of the Secretary of State's decision. Presumably, if the necessary consequence of the commissioner's reporting his disquiet about a particular warrant was that the warrant became public knowledge, he would seek to minimise the damage to the system by limiting criticism to cases in which the issue of the warrant was beyond doubt unreasonable. Even then, difficulties would arise. For example, let us suppose that a warrant is properly issued in respect of a terrorist living in certain accommodation. However, a mistake is made and the Secretary of State is asked to renew the warrant after the terrorist has moved out and a perfectly innocent person has moved into that accommodation. If the commissioner notified the tribunal, and the tribunal notified the persons concerned, the tribunal would have to notify the terrorist as well as the householder. There is no easy way round the problem. We could not begin to follow the form of words chosen by the hon. Gentleman, and I am not suggesting that any other form would solve the problem that I have just described. That merely shows that the Bill is right to draw a clear distinction between the role of the commissioner in checking the system and the role of the tribunal in giving remedies to those who think that they are victims of improperly authorised interception. I was surprised by what the hon. Member for Battersea (Mr. Dubs) said. In effect, he said that the amendments are important because the problem with the Bill is that people will have no opportunity to have their wrongs redressed. The whole point of the Bill is that, for the first time, people will have an opportunity to have their wrongs redressed. In those circumstances, I invite the hon. Gentleman to withdraw his amendment.
Although I accept that the commissioner is not the right body to consider the matters that the hon. Member for Battersea (Mr. Dubs) has mentioned, what is the status of the tribunal? I accept that the role of the commissioner is to review the carrying out of the Secretary of State's duties in the granting of warrants, but it must be highly likely that the tribunal will find during its inquiries that unlawful interception has taken place. I am not clear what is to happen if the tribunal, on receiving a complaint from a member of the public who believes that his mail or telephone has been intercepted, finds that there is prima facie evidence of interception for which no warrant has been granted. Should the matter be referred to the police? What is the tribunal expected to do? Is there not a lacuna and should the tribunal be required to refer such matters to the Director of Public Prosecutions?
The tribunal is under no duty to report such matters to the police, but it will act as any other body or individual would act. There is no reason to suppose that a tribunal would fail in its clear duty. It would have exactly the same duty as any other citizen who learnt that a criminal offence had been committed. These matters were discussed yesterday when my right hon. and learned Friend was unable to be here.
I accept that our amendments should also apply to the tribunal. I have listened carefully to the Minister but do not believe that he has answered the main doubt.I understood him to say that if, during an investigation, the commissioner comes across breaches of the law, he is expected to report the matter to the police. The Minister did not say why the commissioner should not be allowed to investigate prima facie when there have been allegations of the law being broken. I take the analogy of the Lord Bridge inquiry. He was asked to examine something which was defined pretty narrowly and he did not look further into whether some of the allegations in the film on MI5 were accurate. The Minister seemed to say that it is all right if the commissioner stumbles on something, in which case he will report it, but that he should not be empowered to set out to discover whether such things have happened. If the Minister is saying that such matters should be left to the tribunal, he must answer more fully how it will operate in circumstances such as I have described.
I am not saying that that function should be carried out by the tribunal. It is to act in a quasi-judicial way. I am suggesting that those matters are for investigation by the police.
The difficulty is how such matters are drawn to the attention of the police. I am sorry to labour the point, but the allegations in the MI5 film have not been answered, and the Minister knows it. There are clear allegations in that film that the law has been broken. Perhaps the law has not been broken because, before the Bill becomes law, we have no law. Perhaps that is the answer. However, if the Bill becomes law in its present form and if the film had been produced after then, how could the film's allegations be investigated? I suspect that they could not be investigated by the tribunal, unless those whose phones had apparently been intercepted complained to the tribunal. The alternative would be a Lord Bridge type inquiry, but with wider terms of reference—which are the subject of our amendments. I am not sure what the Minister is saying cannot happen and why. I think that the proposition is reasonable.
I thought that I had made this matter plain. The commissioner's role is perfectly easy to understand. He works within the Government, carrying out a continuing review of how the Home Secretary carries out his duties, to ensure that when the Home Secretary issues a warrant he does so properly. How on earth can that be compared with investigating whether a criminal offence has been committed?
I thank the Minister for answering the question. In that case, what is the procedure if there has been a breach of the law under clause 1? The Minister is saying that only the tribunal is available for that.
No. The tribunal is concerned with complaints about warrants that should not have been issued but which have been issued. Clause 1 is concerned with breaches of the law. It creates a new criminal offence. If a person believes that he is the victim of the commission of a criminal offence, he will behave exactly as he would if any other offence had been committed. These are matters for investigation by the police. Any number of judges cannot carry out the work of the police. A man such as Lord Bridge cannot go on a roving commission investigating whether criminal offences have been committed. That would be improper. The job of investigating the new criminal offence created by clause 1 is for the police.
I understand that, but we are still in a difficulty. If it is alleged that there have been interceptions without the issue of a warrant by the Secretary of State, as outlined in clause 1, what is an aggrieved person to do?The police will not have enough information on which to act. If MI5 is carrying out unauthorised interceptions, as was alleged in the film, the matter is too remote for the police to get the evidence. The whole point of the Lord Bridge inquiry is that it was set up following the allegations in the film on MI5. The Home Secretary may shake his head. However, when the Bill becomes law the police may well be able to carry out investigations if there are allegations of the kind made in the film. I understand the Minister's theoretical answer, but I do not understand how it will work in practice. Therefore, I do not believe that the point at issue has been covered. If the Minister says that the point has been covered, I can do no more than allow reinforcements to come in from the hon. Member for Grantham (Mr. Hogg).
I have some sympathy with the point that the hon. Gentleman is making. The Minister said that if there has been a breach under clause 1 this is entirely a matter for the police. If, however, the hon. Member for Battersea (Mr. Dubs) cares to look at clause 7(2) of the Bill he will see that it empowers anybody who believes that his mail has been interfered with or his telephone tapped to go to the tribunal. At that stage the tribunal is in a position to determine whether an offence under clause 1 has been committed. Why should it not make a report to that effect?
If the tribunal's remit is so wide, there is no problem.
Under clause 7(2) a complaint is made to the tribunal that an offence has been committed under clause 1 but the tribunal is not empowered under clause 7(4) to make that determination and to report.
If that is the case, the tribunal is nearly there, but not quite. I repeat that I am unhappy about this matter and I am not sure whether it will be possible to resolve it. I believe that we are left with an inadequacy in the Bill. I do not think that our discussions have pinned down whether the inadequacy is in the way the tribunal functions or in the way that the commissioner might function. I am prepared to accept that the terms of reference of the tribunal ought perhaps to be widened, but I repeat that there is a sense of anxiety which the Minister has not allayed.
I beg to move amendment No. 87, in page 7, line 15, at end insert—
'(4) In pursuance of his functions under this Act the Commissioner may receive and retain documents or information from any person whomsoever, and such receipt or retention shall not be the subject of proceedings for an offence.'.
With this it will be convenient to discuss the following amendments: No. 88, in page 7, line 15, at end insert—
might have been committed or whether there has been or might have been a contravention of sections 2 to 5 above in relation to a relevant warrant certificate.'. New clause 2 — Protection for disclosure of information to the Tribunal, the Commissioner or the Select Committee—'(4) It shall be lawful for any person holding office under the Crown or engaged in the business of the post office or in the running of a public telecommuncation system who reasonably believes that an offence under section 1 above has or might have been committed or that there has or might have been a contravention of sections 2 to 5 above in relation to a relevant warrant or relevant certificate, to disclose or give the Commissioner such documents or information as the Commissioner might reasonably be expected to need in order to determine whether an offence under Clause 1 above has been or
New clause 3—Complaints Commissioner in respect of allegations of misconduct and abuse of authority by members of the security services intercepting communications—'Disclosure of information to the Tribunal, the Commissioner, or the Select Committee, in pursuance of their functions under this Act, shall not be the subject of proceedings for any offence.'.
Amendment (a) to the proposed new clause 3, at end add:
'(3) The Complaints Commissioner shall present an annual report to parliament of the number of complaints he has received and the number of complaints he has reported to the Secretary of State.'.
May I say what a pleasure it is to debate the amendments without undue pressure on time.These amendments relate to the situation that will face individuals who give information about unlawful telephone tapping. They will not be subject to the Official Secrets Act if they pass on information in a proper manner. I added my name to new clause 2 because of my interest as an official of the union which organises both the engineering and clerical staff of British Telecom and many workers in the Post Office. I want them to receive absolute protection when they provide information to the commissioner, the tribunal or a Select Committee, if such a committee is created, and also to a complaints commissioner, if this proposal is accepted. Telephone tapping is undertaken by a small group of our members, and many others come across it in the course of their work. It is not a pleasant duty. Our members are sensitive to the criticism to which they are subjected for being associated with it. Many of them are also troubled when they believe that there is no apparently legitimate reason for the taps. They tell me that they particularly resent taps being installed for the monitoring of industrial disputes. As good citizens they support telephone tapping to fight serious crime and subversion, but the problem that our members face is that they cannot tell anybody when they believe that telephone tapping has gone beyond that. The managers of BT do not wish to know. They put the responsibility on the Home Office. Our members are inhibited from coming to the union because of the Official Secrets Act. They ought to be able to complain either when they see what they believe to be unauthorised tapping or when they believe that the Government are failing to keep the law. They ought to be able to go to the commissioner, the tribunal or a Select Committee without fearing that action will be taken against them. The Bill, as drafted, does not provide that protection. Clause 8(3) says:
That, to me, implies immunity from prosecution, and I should be delighted if the Home Secretary could reassure me that that is so. However, even if such a reassurance is given, clause 8(3) does not cover tribunals or, if it were to be given power, a Select Committee. Under schedule 1 persons holding office under the Crown have a duty to provide information, and presumably they will escape prosecution under the Official Secrets Act, but this immunity does not extend to BT or Post Office employees who now work for private employers. Why should the conditions be different for the commissioner and the tribunal?"It shall be the duty of every person holding office under the Crown or engaged in the business of the Post Office or in the running of a public telecommunication system to disclose or give to the Commissioner such documents or information as he may require for the purpose of enabling him to carry out his functions under this section."
Is there not yet another objection to this subsection, namely, that the duty to provide information or documents arises only if it is required—that is, if it is asked for — and does not provide immunity in the event of a public servant volunteering it?
The hon. Gentleman will have a chance to speak to his excellent amendment later. However, I shall refer to it now. My next sentence would have been that clause 8(3), which covers information to the commissioner on request, does not cover those cases where the employee wishes to give unsolicited information. This is indeed a very important question. BT and Post Office employees ought to be able freely to pass on information which worries them, yet it ought to be passed to somebody who, without holding direct responsibility, is totally safe from a security point of view. That means the commissioner, the tribunal or, if our proposals are accepted, the Select Committee and the complaints commissioner.I would emphasise most strongly to the Home Secretary that it would be better if BT and Post Office employees, whom I represent, who are very troubled and disturbed about what they see, could go to the commissioner or to the tribunal rather than leak information to the newspapers in the hope that something will happen. When people come to me asking what they should do in those circumstances, I would much rather be able to tell them that there is someone whom they can tell who is absolutely safe from the point of view of the security of the realm than to have to tell them that there is nothing that they can do, knowing that they will then be tempted to ring the Daily Express, the Daily Mail, The Guardian or The Observer. From the point of view of security, the Home Secretary would do well to think hard about this practical point. 8.30 pm So far I have dealt only with the Official Secrets Act, but it is also important that no internal disciplinary action should be taken against any BT employee who gives information. At present, the Bill does not cover that and the Home Secretary should consider it carefully. Under paragraph 4(2) of schedule 1 the tribunal is forbidden to disclose any information given to it without the consent of the person disclosing it, but BT and Post Office employees may regard that as insufficient protection because by the act of communicating, whether by letter or in some other way, their views on particular instances of telephone tapping they may not only have committed a breach of the Official Secrets Act but have acted in a way detrimental to the business and thus be subject to internal disciplinary proceedings. Just as no prosecution under the Official Secrets Act should be permitted, so no internal disciplinary proceedings should be permitted in these circumstances. On Second Reading I asked in an intervention:
The Home Secretary replied:"Can the Home Secretary tell us whether employees working for public telephone operators will be able to give evidence to the tribunal about unauthorised telephone tapping without risking prosecution under the Official Secrets Act 1911? If employees cannot give such evidence, are we not to depend on official sources only for what are the facts of the situation?"
It is not the ability to take evidence that is the question. The point is the ability to give evidence without fear of reprisals either under the Official Secrets Act or under internal disciplinary codes. That is very important indeed. I ask the Secretary of State to consider these matters very carefully. I hope that we shall get a good response today. I should make it clear that in a matter as serious as this I would not press the precise wording of a particular amendment or seek to divide the Committee on the matter. It is not an issue of great party principle. It is, however, a matter of great practical consequence. Before the hon. Member for Grantham (Mr. Hogg) jumps up again, I wish to deal with the background to this group of amendments and to say something about the hon. Gentleman's own proposals. New clause 3 recognises the importance of giving members of the security forces the opportunity to initiate complaints. It is essential that anyone who believes that something is going on unlawfully should be able to take the evidence to a person who is completely safe from the security point of view. This group of amendments seeks to deal with a very difficult problem — how to ensure that Ministers and others are not encouraged to break the law because they act in complete secrecy and can rely on the fact that those who know about or stumble across the activities in question will baulk at the consequences of disclosure. That is the nub of the matter. At present, there is a great deal of discontent. We know that there is discontent in MI5, and I find it among employees of BT because on occasion—I do not wish to exaggerate this—they believe that things are not quite right and they want to be able to tell someone. It is no answer to say that BT employees can go to the management of BT, because the management is not interested and will simply say that it is the business of the Home Office. It is equally pointless to tell employees of BT or MI5 that the right person to approach is the Home Secretary, because the Home Secretary is seen to be responsible for these activities and the people undertaking them may well be carrying them out in his name, so he is certainly the wrong person with whom to have a chat about what is going on. There must be an independent person to whom people can go. Frankly, I am not fussy whether it is the commissioner, the tribunal or a complaints commissioner, but there must be an independent person to whom people can express their unease about the apparent unlawfulness of what is happening in their sphere of activity. I believe that this will also act as a check on the Home Secretary and his officials and on MI5, making them more accountable. If they know that there is a possibility of people operating in the field going to an independent person with responsibility for the oversight of telephone tapping, they will be more careful about keeping within the law. That is human nature. It is not, however, the major point to which I wish to draw attention. The essential point is this. Despite my earlier comments, I believe that Post Office employees are covered as Crown employees, but it is vital that all BT employees should be exempt from any threat under the Official Secrets Act or internal disciplinary procedures if they give evidence, solicited or unsolicited, to the commissioner, the tribunal or any other responsible body."I am perfectly satisfied that the tribunal will have full powers to take whatever evidence is necessary in relation to a particular case. I do not believe that there will be any inhibition of the kind that the hon. Gentleman mentions." —[Official Report, 12 March 1985; Vol. 75, c. 164.]
I wish to speak to new clause 3 which stands in my name and those of my right hon. and hon. Friends.The new clause seeks to give the security services what I believe many people on both sides of the Committee would agree are badly needed facilities—the means to make a complaint or to express dissatisfaction about what is happening within the service. It hardly needs to be said that secrecy is the ace weapon of the secret service, giving the security services the same advantages of stealth and surprise on which the sinister people — terrorists, dangerous criminals and those involved in subversion—also rely. The trouble with secrecy, of course, is that in the wrong hands, and handled irresponsibly, it can be a weapon that backfires. In those circumstances, the people who will suffer are the people who should not be touched by the secret services, and civil liberty itself can, indeed, as we know, be put in danger. It would in my view, and I am sure in the view of all hon. Members, be quite unrealistic to suppose that any service or any group of people could ever be looked upon as being free from the risk of having in their number those who might misconduct themselves or abuse or misuse privilege and authority. When this happens, if it does happen, the question is the very question that new clause 3 attempts to answer: what happens if a member of the security services discovers, believes or, indeed, is certain that a colleague in the service is, in the words of new clause 3, abusing the authority which has been given to him? To whom does this discontented, dissatisfied or possibly very alarmed member of MI5, for example, turn? At the moment, there does not appear to be anyone. There is no channel through which he can put a complaint. There is no one to whom he can say "I feel that something is going wrong in the service, and I want to have it investigated and put right." There is no oversight, no independent person standing either inside or outside the service who can undertake the very responsible and, I believe, very necessary task of making up his mind whether something is going wrong. As to the case of Michael Bettaney, an MI5 officer who was recently the subject of a criminal investigation and ultimate conviction, this man, it seems, when he was dissatisfied turned, or tried to turn, to the KGB. A colleague who was working with him, a Miss Miranda Ingram, has said, or at least certainly has written in New Society, that she knew Bettaney well, and if Bettaney had had someone to whom he could have talked in confidence, in her view, from what she knew of the man and the circumstances, it was unlikely that he would have done what he did. May I ask the Committee also to consider the case of Sir Roger Hollis. My hon. Friend the Member for Thanet, South (Mr. Aitken) referred to this case earlier in the debate, and I do not want to repeat what he said. It is important to remember that not only was Sir Roger Hollis the director-general of the service MI5, but ultimately he became the target of suspicion of officers in that service who found themselves impotent when they tried to express their dissatisfaction and uncertainty about what Sir Roger Hollis was doing because they believed — rightly or wrongly—that he was the man who was the mole, who was in fact working with the KGB. When the colleagues of Sir Roger Hollis — and this seems to me wholly pertinent to the question of the proposal contained in new clause 3 that there should be a complaints commissioner to whom members of the secret service should be able to turn—tried to make known their suspicions, they had ultimately to send one of their number to No. 10 Downing street. He tried to see the Prime Minister and ultimately he was fortunate in being able to consult the secretary of the Cabinet of the day, Lord Hunt of Tanworth, and from that, of course, as we all know, flowed the inquiry into the various events which have given rise to the suspicions. 8.45 pm If there had been, as I submit to the Committee that there certainly ought to be, a complaints commissioner standing outside the security services, then there would be no reason, and certainly no excuse, for someone like Miss Massiter to turn to the media to try to get relief. It is the absence of someone to whom the dissatisfied officer in MI5 or the security services can turn that leaves what I believe is an alarming gap in the procedures that ought to be available within the secret service. The support that is being given, I understand—though looking round the Chamber would not be the best evidence of it—to new clause 3 is substantial and wide and covers both sides of the Committee, I am happy to say. I understand, for example, that the right hon. Member for Morley and Leeds, South (Mr. Rees), a former Labour Home Secretary, and the right hon. Member for Cardiff, South and Penarth (Mr. Callaghan), a former Home Secretary and a former Prime Minister, both have indicated their support for new clause 3 and the intention which it proclaims of the appointment by the Prime Minister of a complaints commissioner. The complaints commissioner would first investigate any complaint, he would then have to decide whether the complaint was one of substance and was sufficiently serious to justify a report, and he would then have to report, as new clause 3 makes quite clear, to the relevant Secretary of State. His duties—and this has been pointed out during the course of the debate—would be wholly different, separate and distinguishable from the duties of the commissioner who is now known as the judicial monitor. His duties would be those which at present are being fulfilled by no one in MI5. There is an alternative to the solution which is set out in new clause 3, and I recognise that. The alternative is a reorganisation of the administration within MI5. It would be a managerial solution. Attempts should be made by the management to see that when complaints are made they are heard and investigated, and conclusions are reached which would be for the benefit of the service. I do not for one moment have the least confidence in that alternative being a remedy for the specific difficulties that we are facing at present through the absence of a proper channel for complaint. In America, the CIA and the FBI were both troubled—and grievously troubled—by the sort of problems that we in this country have found affecting MI5. In America, they tried to resolve those problems by administrative reform, by bringing in what one might call managerial solutions, and they failed. And what did they do, having failed? They appointed an inspector general within an oversight system of the kind that is proposed by new clause 3. In Canada, people were troubled, as they had been in America and we have been here, by the problem of no proper channel for complaint. They tried to bring in the alternative of a managerial solution. They, too, failed. What did they do? They appointed an inspector general of the kind that is proposed by the new clause, under the title of a complaints commissioner. I am told that in both America and Canada they call him an ombudsman. I do not mind what they call him provided that we have one. There were suspicions in the case of Sir Roger Hollis, there was the case of Michael Bettaney and the film of Miss Massiter. If anyone believes that we have seen the last of those troubles, he is deceiving himself. Those troubles and problems are so serious and so fundamentally affect the future security and efficiency of our security services that they must be faced by the Government. I believe that my new clause contains the proper and effective solution. If my right hon. and learned Friend the Home Secretary cannot say that it is the right solution, I hope that he will at least undertake to look again at the problem so that at some later stage we may have the opportunity of reconsidering all these difficulties and bringing them to a proper and satisfactory conclusion.
I support new clause 3, spoken to by the hon. and learned Member for Fylde (Sir E. Gardner) with eloquence and cogency. It would be difficult to resist the force of what he said about the present situation and the inadequacies of the routes available to those within the secret service who are concerned, rightly or wrongly, that there has been some fault or activity that they believe is reprehensible, dangerous or wrong.The hon. and learned Gentleman made a positive case extremely well. I have tried hard to think what conceivable arguments the Government might try to apply against it. The strongest argument that they could dredge up is that the new clause would be ineffective because it would be difficult for an outsider to have total access to the workings of the machine that would enable an effective examination to take place. In the case of Sir Roger Hollis, it was possible for channels to be blocked, or at least it was alleged that that happened. There is no guarantee that an outsider, given the most far-reaching powers, would be able to unblock such channels or would not be stopped by the battlement deliberately put in the way by someone obstructive in a hierarchy where it is possible to block communications. However, that argument of ineffectiveness does not demolish the hon. and learned Gentleman's case. I suspect that the complaints that arise from time to time flow from an incomplete appreciation of the picture by someone in the service who is capable of seeing it only from that corner from which he views those things, a part of the whole. All that is needed is an outside, independent person to say, "I have looked at the situation in the round and I think that what has happened is justified and was done for good reasons." Then many of the problems might disappear. I think that the hon. and learned Gentleman has in mind someone of the highest authority and experience and of the utmost probity and reliability to be in such a role. Therefore, there is no possible security argument that could be deployed against the hon. and learned Gentleman's case.
The person who would be eligible for such an appointment by the Prime Minister would, as the new clause says, be someone who holds or has held high public office.
I have no doubt that suitable names spring to mind.Even if the new clause does not altogether deal with the problem, which has occurred repeatedly—the hon. and learned Gentleman cited the examples of the Bettaney, Hollis and Massiter cases—we must try to do something to improve the situation. It may not be the perfect remedy, but at least it does not carry within it any seeds of the destruction of the service. It is not such a radical proposal that it need cause fluttering in the dovecots of those who have a professional involvement in security matters and to whom "outside intervention" of any sort would certainly seem unusual. It should not necessarily be unwelcome.
I should like to speak to amendment No. 88, which is in my name.I also support in broad terms new clause 3 argued so persuasively by my hon. and learned Friend the Member for Fylde (Sir E. Gardner) and the point made by the hon. Member for Caithness and Sutherland (Mr. Maclennan). However, I do not want to range as widely as my hon. and learned Friend because I should like to confine my attention to the scope of the Bill. We are seeking to determine a good system for investigating complaints about the misuse of the interception of telephones and postal communications. That is the prime purpose of the Bill. The inevitable truth is that those who know most about the abuses are those who are employed either in the public service or by the relevant agencies of the public service. For the most part, they are covered either by the Official Secrets Act or by restrictive covenants in their contracts of employment. Consequently, they cannot go to the commissioner with a complaint without exposing themselves either to prosecution under the Act or perhaps to disciplinary procedure arising from a breach of their contract of employment. It is perfectly true that subsection (3) gives unlimited protection, but that protection exists only when the commissioner requires disclosure of information or production of documents. It does not exist when somebody wishes to volunteer either one or the other. It is in the public interest that members of the security services, Crown employees of one kind or another, employees of BT or the Post Office, should be able to go to the commissioner if they have reasonable grounds to suppose that an offence is being committed under clause 1 or that there has been a contravention of clauses 2 to 6, and that they should be able to do this without exposing themselves to legal sanctions. There are three things which make this desirable. First, this is a way whereby abuses will be discovered and the existence of the sanction will itself be a further restraint and check on abuses. That is the first advantage. Secondly, these are matters that should be brought to the attention of the public. Furthermore, this will act as a safeguard for discontented members of the security services. If they do not have a safe quarter to which they can turn, they will be dissatisfied and discontented.
I am not sure that it is a matter of bringing it to the attention of the public. The attraction of the amendment for me is that it is taken to somebody who is going to examine it in private. These are not matters, speaking for myself, about which we want public discussion. I have been appalled at the naming of Harry Newton as an MI5 agent without possibility of proof or disproof. We do not want discussion of these matters in public, either because of the individuals involved or because of the security of the realm or wanting to fight crime. What is needed is access to somebody in private who is able to act on one's behalf.
The rebuke is well taken and the hon. Gentleman is quite right. To use President Reagan's words, I mis-spoke myself. The point I am making is that it is desirable that there should be a body to which discontented members of the security services can turn. It is the fact of disclosure to that body and then an independent and private inquiry that will do so much to reduce discontent within the secret service and elsewhere.The third point is that, if there is not this particular safety valve, people will undoubtedly turn to the press and there will be a whole series of scare stories, which would be in nobody's interest. Accordingly, I am in favour of some means whereby members of the security service, the Post Office and BT who fear there may have been an offence or a contravention can pass on this information without exposing themselves to legal action.
The debate covers two separate but related aspects of the Bill. The first is the anxieties initially expressed by the hon. Member for Newcastle-under-Lyme (Mr. Golding) about the position whereby the staff of BT or the Post Office had information which they were afraid to disclose for fear that they would be guilty of an offence under the Official Secrets Act.I would not wish those staff to be inhibited in any way by such a concern. The only reason why I cannot advise the Committee to accept this amendment is that I believe that they need not be inhibited by any such concern under the provisions of the Bill together with the general law as it stands. I can certainly assure the Committee that if I were not of that view I would be extremely sympathetic to the belief that it is necessary to do something about it. I have no desire to prevent those with legitimate grounds for making a complaint or anxieties to express through the proper channel from doing so. To explain why I think that it is not necessary for there to be any provision other than what stands on the face of the Bill it is necessary once again to make the distinction I made at an earlier stage, in our deliberations on another amendment, between the various institutions and the various things that may go wrong. I will deal first with the aspect that has been the main subject of this part of the debate and the anxiety expressed by the hon. Member for Birmingham, Erdington (Mr. Corbett)—that is, breaches of the law; matters which become offences under clause 1 but which have not been offences until now. I am advised that, if a telecommunications or Post Office employee were, like any other member of the public in a similar position, to make a complaint to the police—which would be the proper avenue for dealing with breaches of the law—he would not be in breach of section 2 of the Official Secrets Act. I should explain—this relates perhaps to some of the earlier debates rather than to this one—that it is my intention to issue guidelines to the police, as I said on Second Reading, as to how they should discharge the new function of investigating breaches of the law constituted by this newly created offence. The police will have a new task and they might require assistance from outside their own ranks to investigate matters which previously had not been subject to their scrutiny. Someone who makes a complaint to the police about a breach of the law will not be liable to prosecution under the Official Secrets Act. We must also consider impropriety, which is within the ambit of the commissioner and the tribunal. I do not want anyone to be inhibited by the fear of prosecution under section 2 of the Official Secrets Act. Hon. Members have mentioned clause 8(3), which imposes a duty on all concerned to disclose to the commissioner such documents or information as he may require to enable him to carry out his functions. My hon. Friend the Member for Grantham (Mr. Hogg) made a distinction between information sought by the commissioner and information volunteered by those who believe that their information is relevant to the commissioner's task. It will be for the commissioner to determine how he formulates his requirement for information and documents. There is little doubt that those requirements will be expressed — this is the Government's intention — in general terms and be directed to the Ministers or senior persons concerned and so will apply to all subordinate staff. Anyone in possession of information which he thinks is relevant to the commissioner, even if he has not been asked for it, would be authorised to disclose it, and therefore not be guilty of an offence under section 2. If there were any doubt, the person need only tell the commissioner that he is in possession of relevant information or documents and the commissioner will ensure that his requirement is framed, or reframed, in terms which cover those circumstances. It is inconceivable that that would not be done. Although I sympathise with the anxieties of hon. Members on both sides, I do not believe that an amendment is necessary because the Bill, with the general law, is couched in terms which will have the desired effect.
The Minister has been helpful and I thank him. However, I am still unclear about why the provision is different for the commissioner and for the tribunal. Have I missed the explanation?
The tribunal's position is different. The commissioner is concerned with interception in general terms, with the whole operation of the system and perhaps with impropriety in the broader sense. The tribunal is concerned with a narrower question. It must decide whether official interception has taken place — a relatively simple matter—and whether it should have taken place in the sense of the Secretary of State acting reasonably in applying the criteria when he issues the warrant. For those purposes, the information relates to the material presented to the Secretary of State. That material will not emanate from Post Office or telecommunications employees. The tribunal's task therefore differs from the commissioner's task. It is almost impossible to conceive of circumstances in which the particular protection of the tribunal as opposed to that of the commissioner is called for.
The Home Secretary might find it difficult to envisage such circumstances, but what harm is there in the Home Secretary making it absolutely clear that, if such circumstances arose, the same cover would apply to tribunals as applies to commissioners? Because there is doubt in the minds of BT staff, and possibly Post Office staff, what do we have to lose by making it absolutely certain in the Bill that BT and Post Office employees can give evidence to the tribunal, if they wish, without fear of prosecution under the Official Secrets Act? In many ways, it would be simpler if the Home Secretary, who has been so helpful in the matter of the commissioner, at the very least said, "I shall look at this aspect again before Report" rather than shut the door.
I am grateful to the hon. Gentleman for accepting what I said about complaints about the police. I beg him not to fail to appreciate that, just because the police are not mentioned, they are the most important part of the matter. I am grateful to the hon. Gentleman also for accepting that the coverage effectively deals with the commissioner.I do not believe, for the reasons that I have given, that there is a problem in relation to the tribunal, but I shall be happy to consider the hon. Gentleman's points further. As presently advised, it would be wrong for me to give the impression that a further gap needs to be filled. I shall certainly consider the hon. Gentleman's point. My hon. and learned Friend the Member for Fylde (Sir E. Gardner) referred to wider matters. They are very much wider matters. The Bill relates to interception, so it is inevitable that my hon. and learned Friend's new clause should refer to complaints about interceptions. Many, if not most, of the complaints mentioned in the various examples given by my hon. and learned Friend either do not primarily relate to interception or do not relate to interception at all. It would be a curious remedy therefore to set up a complaints system that would deal with the problems which have been identified, rightly or wrongly, by my hon. and learned Friend and would confine itself to the interception of communications. It would plainly be impossible for this legislation to do anything other than confine itself to the interception of communications. I hope that my hon. and learned Friend the Member for Fylde will not feel that, apart from any other considerations, the necessity of giving so narrow a remit to the commissioner makes it inappropriate for the legislation to contain such a provision.
I think that I shall be dealing with the broader point to which my hon. and learned Friend intends to refer.
I was going to point out that I was very much aware that some of my examples were merely illustrative of the need for a person to investigate complaints. I hope that my right hon. and learned Friend will hear in mind that the Massiter film dealt with alleged unlawful and wrongful interceptions.
Perhaps my hon. and learned Friend would be good enough to peruse at his leisure my speech on Second Reading. He will find that I dealt seriatim with the various allegations, of which the allegations in relation to interception — which were the subject of Lord Bridge's report—were only a part. Therefore, the very example that my hon. and learned Friend gives appears to illustrate that this would be an ineffective remedy even if a remedy of this kind were appropriate for the security services.I thought that my hon. and learned Friend was going to chide me with not dealing with the broader considerations that he raised. However, he was charitable enough to anticipate that I might go on to do so. Of course, I share and understand his concern and that of other hon. Members about the necessity for those in the security services to be able adequately to discharge their feelings of resentment, discontent, inadequacy as to their seniors' conduct or even a feeling that something more serious had gone wrong. It is important that there should be a proper way in which they can do so. However, there is a risk that, because there have been one or two cases such as those mentioned, wrong conclusions may be reached. I do not accept that it necessarily follows that a person who has subsequently gone very seriously wrong would not have done so if there had been a person on whose shoulders he could lean. It is very easy, for charitable or other reasons, to make such assertions. Even if we were inclined to go down that path, we would be reluctant to impose so great a degree of confidence in an institution as to assume that it could avert a person in that frame of mind from committing offences. There is a risk that topical examples lead us to reach the wrong conclusions. The experience of a disciplined service in which those who feel that something has gone wrong need a vehicle for expressing their discontent is not unique to the security services. Indeed, it is not unique to them for the position to be such that disclosure of information by disaffected persons would be damaging to the country. An obvious example is the armed forces of the Crown, where many people in both the lower and more senior positions are properly and necessarily equipped with material information of a highly secret nature. I do not think that it would be suggested that we should have an ombudsman in that area of activity. It is appropriate to consider in the Civil Service as a whole what the proper channel of complaint should be. Most people who have been involved in these matters, whether in the Civil Service, armed forces or the security services, would feel that it is a proper function of senior management to organise itself so that there is a machinery whereby persons lower down can ventilate complaints with confidence that they will be properly investigated. It is necessary that that should happen in any organisation — the so-called managerial solution, on which my hon. and learned Friend looked with an unnecessarily critical gaze—but we are talking not only about a large organisation but one where there is ministerial responsibility and oversight. I said on Second Reading that I regarded the discharge of that responsibility as one of my most important tasks; that I wished to make certain in my mind that the director-general and his senior colleagues so organised the security service that it was possible, and active encouragement was given, for complaints to be made. I have discussed that matter with the new director-general and I propose to continue discussing it so as to satisfy myself that, within the security service, the problem is adequately understood and properly dealt with. That is the right approach. It is reasonable to have a system in which one is alert to the problem but in which the responsibility for dealing with it is put on the professional head of the service, under the superintendence of the Minister to whom he is responsible. That is the proper approach to these matters and we should not be diverted from it because of an example, or even a couple of examples, where it is asserted, but cannot be proved, that the alternative approach commended in the amendment would have prevented serious matters that did occur. I assure hon. Members, from the point of view of the director-general and myself, that I regard the provision of proper machinery in the security service for the ventilation of complaints of all kinds as a matter of great importance. The Committee owes a debt of gratitude to my hon. and learned Friend for giving us the opportunity to make the position on that absolutely clear.
It must be a sign of the times that the Home Secretary is far more critical of amendments standing in the names of his hon. Friends than he is of anything that we on these Benches say. I thank him for his positive approach to the problems that the members of my union face. I say that with the proviso that we shad almost certainly table a new clause on Report.
The hon. Gentleman must not add to what I said. I expressed sympathy, but I gave no undertaking.
I am mystified. I simply thanked the right hon. and learned Gentleman for his positive approach. I shall read with wonderment the Official Report of what I must have said that has caused him so much concern. I am glad that the right hon. and learned Gentleman rose, because I am encouraged to examine every dot and comma of his reply. In other words, I shall examine far more carefully than I might otherwise have done the position that he adopted.Until the Home Secretary rose to interrupt me, I was positively grateful to him for what he said about the commissioner and about access to the police. In view of his intervention, I am not sure whether he is withdrawing some of what he said earlier.
Get on with it.
Any Conservative Member who tells me at 9.25 in the evening to "Get on with it" cannot have had as much experience of my speeches as, for example, the Government Whip. We are debating a matter that is most important to me. It will not be dealt with by Conservative Members, who come in out of the cold late in the debate and make comments from a sedentary position.We are not satisfied with the position regarding the tribunals, and we shall certainly table a new clause for consideration on Report. I am not sure whether the Government should not give protection to British Telecom and Post Office employees in respect of information which tribunals may request from them. If the Government are saying that they cannot envisage tribunals asking for evidence, they should make it clear in the Bill that tribunals do not have the right to ask for information. It is wrong for the Government to create a position which will give tribunals the power to ask BT and Post Office personnel to give information relating to their duties which is covered by the Official Secrets Act without at the same time making it absolutely clear in the Bill that there will be no breach of the Act if the employees respond to that request. The Home Secretary cannot have it both ways.
The hon. Gentleman is doing both himself and me less than justice. I said that I would consider his point carefully. If he wishes me to do so, I shall do so. However, if he misrepresents what I said, it makes it difficult to do so in the same spirit.
I should have thought that the Home Secretary would consider my point despite what I say. I should have thought that, acting in a judicial manner, he would not say to me, "If you are hard on me, I shall consider the matter differently from the way that I would consider it if you said nice things to me." The Home Secretary must consider the matter carefully.I put two separate points to the right hon. and learned Gentleman. Under the Bill, will the tribunal have power to ask BT and Post Office staff about matters relating to their official duties? If the answer is yes, he must give protection to those employees. If the answer is no, he must make it absolutely clear to the tribunal that it cannot ask them about such matters. It must be one way or the other. That is my point. I beg to ask leave to withdraw the amendment, although I am not satisfied—
Order. Before the hon. Gentleman does that, another hon. Member wishes to make a contribution.
I am bound to say to my right hon. and learned Friend that my faith in the efficacy of the proposal in new clause 3 has in no way been undermined by anything that he has proposed by way of an alternative managerial solution. I am anxious, as I hope every member of the Committee is, to give the idea contained in new clause 3 the opportunity of living on and, I hope, a more successful day.
Does the hon. Member for Newcastle-under-Lyme (Mr. Golding) wish to withdraw his amendment?
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
I beg to move amendment No. 142, in page 7, line 31, leave out 'Subject to subsection (8) below'.
With this it will be convenient to discuss amendment No. 143, in page 7, line 33, at end insert
'together with a statement as to whether any matter has been excluded from that copy in pursuance of subsection (8) below.'.
This is part of the process which provides greater safeguards for the citizens. Under clause 8(4) the procedure is for the tribunal to report to the commissioner. The commissioner investigates and considers and then, in time, reports to the Prime Minister. The Prime Minister is under a duty to provide a copy of the annual report made by the commissioner, but it is clear and necessary that the Prime Minister should have the power to delete material which is prejudicial to the national security. It seems to me, and I hope that it will seem so to my hon. and learned Friend, that if that power is exercised, the fact that that material has been excluded should be contained in the report. It is additional information which I feel the House should have.
The Government welcome the approach adopted in these amendments and will be glad to see them incorporated in the Bill. The commissioner's report must meet two requirements. It must be frank, and the commissioner must not in any way be inhibited in what he thinks is appropriate formally to draw to the Prime Minister's attention. He therefore may wish to comment on matters of the greatest secrecy. It is therefore also necessary that before the report is published such passages should be deleted. If that were not possible, the report could not serve the purpose which it is intended to serve.The Government like these amendments because they, as it were, round off that arrangement. They ensure that the Prime Minister makes a statement if any changes have been made, so that Parliament is informed of the fact of deletions, but is not, of course, given any indication as to their content. These are welcome additions to the Bill. I am grateful to my hon. Friend for moving the amendment.
Amendment agreed to.
Amendment made: No. 143, in page 7, line 33, at end insert—
`together with a statement as to whether any matter has been excluded from that copy in pursuance of subsection (8) below.'. —[Mr. Douglas Hogg.]
Clause 8, as amended, ordered to stand part of the Bill.
Exclusion Of Evidence
I beg to move amendment No. 109, in page 8, line 2, after 'shall', insert
`except as authorised by a direction given in pursuance of subsection (1A) below'.
With this it will be convenient to consider amendment No. 110, in page 8, line 8, after 'persons', insert—
'(1A) a direction as mentioned in subsection (1) above may be given by a court or tribunal if that court or tribunal is satisfied whether on application or otherwise that a failure to give such a direction would seriously prejudice the rights of one or more of the parties to the proceedings there before it.
In the event of such a direction being given no matter given as evidence pursuant to that direction shall be published in any written publication available to the public or to broadcast except as authorised by direction made under subsection (1B) below.
(1B) If the court or tribunal which makes such a direction as is mentioned in subsection (1B) above is satisfied that the effect of subsection (1B) is to impose a substantial and unreasonable restriction upon the reporting of the proceedings and that it is in the public interest to remove or relax the restriction it may direct that that subsection shall not apply to such matter as is specified in the direction.
(1C) If any matter is published or broadcast in contravention of subsection (1A) of this section, the following persons, namely—
shall be guilty of an offence and liable on
(ID) In this section—
"a broadcast" means a broadcast by wireless telegraphy of sound or visual images intended for general reception, and cognate expressions shall be construed accordingly;
"written publication" includes a film, a sound track and any other record in permanent form but does not include an indictment or other document prepared for use in particular legal proceedings.'.
I take the view that these are important amendments. As I understand it, the effect of clause 9 as it stands is that in no legal proceedings other than those mentioned in clause 9(4) may evidence be adduced to the effect that an offence has been committed under clause 1 or that the warrant is in existence. That is a broad power. It is a statutory prohibition on the admission of evidence in court.The first question that I must ask my hon. and learned Friend is whether at the moment there is any statutory bar on the admission of evidence relating to the issue of warrants or the identity of persons to whom the warrant has been issued. So far as I am aware, there is no such statutory bar. I feel sure that the Committee would appreciate my hon. and learned Friend's guidance. There is of course always the residual power of the judge to exclude, but I am not aware of the exclusion being used in circumstances such as these. If I am right in thinking that there is at present no statutory bar, the Government are going beyond what was said in paragraph 7 of the White Paper, which stated that it was not the purpose of the Bill to extend the law beyond the existing custom and practice. If we introduce an exclusion rule which does not exist at present, we shall indeed go beyond present custom and practice. The purpose of the amendment is to admit evidence of the kind to which I have referred but which is now excluded in certain circumstances. There muse be, and there is, a general presumption in favour of the admission of relevant evidence. I do not mean a legal presumption —there is in fact a legal rule—but every member of the Committee will accept that as a general rule relevant evidence should be admitted to courts. Sometimes it is necessary to impose restraints on the publication of matters before a court. Sometimes that is justified. However, as a general rule, I am in favour of relevant evidence being admitted before a court. One must recognise that the exclusion of relevant evidence can often cause real prejudice. That is a general proposition. May I test it by example? If I suggest an example, my hon. and learned Friend can always say that the example is a fanciful one, that such a case would be unlikely to arise, or that such evidence would perhaps be admitted or would not be relevant. However, I would like to test the proposition by considering two or three examples. First, let us take the example of a libel case. A newspaper alleges of a Minister or a specific official that he has acted in a repressive, unreasonable or dictatorial way. That would seem to be a defamatory observation to make of any Minister or official. The Minister or official sues the newspaper for libel. The newspaper has in its possession evidence to show that the Minister or official had connived at, instigated or otherwise been a party to an unlawful interception or an interception which contravened clause 2 and the consequential clauses. Is it to be said that, in libel proceedings, a newspaper is not able to adduce evidence to show that an offence has indeed been committed under clause 1, or alternatively that the Minister or official has connived at a breach of, for example, clause 2? That is an extraordinary proposition. It does not seem right at all. That is one example of a case in which the interests of justice and of the parties involved require the admission of that class of evidence. Let us take another example. An employee of British Telecom unlawfully intercepts a telephonic communication. That employee is of course committing art offence under clause 1. He is therefore dismissed. He then goes to the industrial tribunal and claims that he has been dismissed unfairly. However, the reason why he was dismissed is that he had been interfering with telephonic communications, which is an offence under clause 1. Is his employer to be prevented by the Bill from adducing evidence to that effect or cross-examining on that matter? For a third example, let us take the case of a Post Office worker. Quite frequently—I mean no disrespect to the hon. Member for Newcastle-under-Lyme (Mr. Golding) — members of the postal service interfere unlawfully with the mail, for a variety of reasons. That happens in a significant number of cases every year, and could be an offence under clause 1. The Post Office dismisses that employee, and the employee goes to the industrial tribunal alleging unfair dismissal. The reason for his dismissal was an offence under clause 1. Is the Post Office to be prevented from adducing evidence, or cross-examining, to the effect that there has been an offence under clause 1? The answer must be no. Nevertheless, all of the cases that I have outlined are covered by the Bill in its present form and would prevent justice from being done. That is why it is a serious matter. I am aware that deeply sensitive issues must be involved in the material that might be put before courts. I have therefore put down the presumption that such evidence will not be admitted. That is the starting point. I have then incorporated the proviso that such evidence may be admitted if refusal to admit it
We therefore start from the presumption—which my hon. and learned Friend the Minister would favour—that the evidence is inadmissible, and say that it must be admitted if the judge or tribunal gives a direction in the interests of justice. Even then I am prepared to accept my hon. and learned Friend's anxiety, because I have provided that the material should not be published unless the tribunal or judge thinks that it is in the national interest to do so. I regard this as a modest means of dealing with the problem. A bar is likely to cause grave injustice, and I am anxious about its appearance in a statute presented by my hon. and learned Friend."would seriously prejudice the rights of one or more of the parties to the proceedings".
I am grateful to my hon. Friend for raising interesting issues. There is no statutory bar on evidence being adduced on the existence of warrants, so there is no bar on questions being asked.My hon. Friend said that the Government are now trying to do what they said in the White Paper they were not trying to do. With respect to my hon. Friend, he is wrong. He is obviously reading paragraph 7 of the White Paper which says that the Government are not seeking, through the introduction of the Bill, to broaden the scope of existing practices in the interception of communications. Paragraph 7 could not be read as referring to questions about the law such as my hon. Friend asked. My hon. Friend's amendments are based on the assumption that the problem is that the courts will not be able to reveal publicly that in which there is a public interest. That is not the problem or, if it is, it pales into insignificance as compared with the real one, which is how we can afford to finish up with a system in which a rogue is enabled to discover the evidence which is available against him. We have to have a system under which a person does not learn, by bringing proceedings, what evidence there is against him. It would be absurd if, having constructed a tribunal to hear complaints, but under a special procedure which does not allow the complainant to know the evidence available against him, the complainant was able to go to a court of law and bring proceedings for the sole purpose of discovering that which he had no hope of discovering from the tribunal. The Committee has already considered the tribunal for which special procedures are set out in schedule 1 which prevent the tribunal from revealing to one party information that it has received from another. This is absolutely vital, otherwise a person would be able to take an application to the tribunal and thereby discover whether a warrant was in existence in his name. The whole system would collapse. 9.45 pm Precisely the same point arises over court proceedings. The circumstances are different but the principle is the same. Somebody should not be able to discover whether a warrant is to be directed against him just by mounting proceedings. These amendments do not mean that in any such proceedings evidence about interception would necessarily be presented. However, they are based on two assumptions: first, that it is known that there is such evidence to give, which in itself is unacceptable; secondly, that both parties might be involved in any consideration of whether or not a direction should be given, and, if it were, would be privy to what was presented as a result. It does not take a great deal of imagination to conceive of circumstances in which an ingenious litigant would discover grounds with which he might expect to persuade the court that it was in his interests that evidence which he believed to be in the hands of the authorities and which he believed to be the result of interception was essential to secure his rights. Merely to start down this road means that the existence of a warrant may have to be confirmed or denied. This in itself would go too far and would prejudice the very confidentiality upon which the effectiveness of authorised interceptions so crucially depends. My hon. Friend the Member for Grantham (Mr. Hogg) referred to the possibility of a Minister conniving at unlawful tapping and of a newspaper having evidence of it, with the Minister suing the newspaper and the newspaper therefore being put at a disadvantage. As I understand it, in those circumstances there would be no difficulty whatsoever because the Minister would have committed a crime under clause 1. My hon. Friend will see that, according to clause 9(3), subsection (1) does not apply to a relevant offence, and "relevant offence" means, among other things,
"an offence under Section 1"
as provided in subsection (4)(a).
My hon. and learned Friend does me an injustice, because I thought of that one as well. If he cares to look at subsection (3) he will see that
A libel case does not constitute proceedings for a relevant offence within the meaning of the clause."Subsection (1) does not apply in relation to proceedings for a relevant offence."
I do not really follow what my hon. Friend is saying. I am referring to clause 9(4) which contains a definition of "relevant offence".
With respect to my hon. and learned Friend, that is perfectly true, but subsection (4) is dependent upon subsection (3).
I shall look into that point when I have a little more time, but my advice is that if a Minister were guilty of a crime because an offence had been committed under subsection (1), the first part of clause 9(1) would not come into play. However, I shall take advice on that point and will write to my hon. Friend if he is correct in assuming that the explanation I have given is incorrect. One has to address one's mind to the main problem: that if one sets up a tribunal which prevents a man from finding out whether he has been properly intercepted, one cannot finish up with that man being able, by bringing proceedings in court, to obtain the information which he failed to obtain from the tribunal. One has to face up to that difficulty.
I wish to make three brief points. First, my hon. and learned Friend the Minister must accept that he is extending the scope of the law in that there is at present no statutory bar to exclude such evidence and in future there will be such a bar.Secondly, my hon. and learned Friend did not deal with the points that I made about unfair dismissal, and it is clear that in the two cases that I mentioned the employer would be at a substantial disadvantage as a result of the Bill. Thirdly, we must accept that if the Bill is enacted in its present form injustice will be done to parties. As a general proposition, I am prepared to accept that the evidence should not be introduced, but I want a residual power to introduce it in some circumstances. Having said that, I recognise that I am not about to persuade my hon. and learned Friend—
Will the hon. Gentleman allow others to comment before he seeks leave to withdraw the amendment?
I am happy to oblige the hon. Gentleman.
The hon. Member for Grantham (Mr. Hogg) has done the House a great service by raising this issue, which has given rise to considerable anxiety. The whole of clause 9, with which the amendment seeks to deal, has been commented on most adversely by Justice, the British branch of the International Commission of Jurists, as being oppressive and going beyond what is necessary to confine the judicial remedy to the tribunal.Clause 9 takes away a right which was previously enjoyed and does not need to be removed for the Minister to achieve his aim. I understand the argument that it is undesirable and, indeed, impossible to set up a tribunal and to allow a remedy through the High Court to proceed in parallel, but that is not the point to which the main thrust of clause 9 relates. In fact, it will preclude the possibility of a line of examination or cross-examination being pursued which may arise in the course of some quite different matter. The circumstances of the Malone case spring to mind in this regard. If these provisions go through in their present form the circumstances of a case of that kind may never come to light again. I do not think that the hon. Gentleman has sufficient troops here to force a Division on the matter, but I sincerely hope that the issue that the hon. Member for Grantham has very properly raised will receive very careful consideration by the legal luminaries in another place.
Perhaps I may reply to the last point. The hon. Gentleman suggests that if the new procedure had been in existence the Malone case would never have come to light. But once the Bill becomes law there need never be such a case again because a person such as Mr. Malone will have a remedy. He will be able to go to the tribunal.
With respect, the Minister misses the point. Mr. Malone would never have known that his telephone had been tapped if it had not been revealed in the course of examination of a policeman's notebook that something had been going on, leading Mr. Malone and his counsel to suspect that interception had taken place. We are men of the world. We appreciate how difficult it is to identify whether telephone tapping or any other form of interception has taken place and that it is only in circumstances of that kind that it will ever come to light.In reality, although in theory Mr. Malone might have a remedy, he would never know that he needed to exercise it.
Surely this is nonsense. If Malone or his advisers had suspicions that his telephone was being tapped, in the old days one would look through a policeman's notebook to ascertain whether there was some evidence of it there. Under the new regime, he would he able to go to the tribunal.
With respect to the Minister, they did not have any knowledge or suspicion that this was taking place. It was only because the matter came out in cross-examination that it was followed up at all. I think that the Minister will find that this matter arouses anxiety in another place, and I have no doubt that it will have to be pursued.
Clause 9 ordered to stand part of the Bill.
Amendment made: No. 118, in page 9, line 37, at end insert—
'(3) For the purposes of this Act conduct which constitutes or, if it took place in the United Kingdom, would constitute one or more offences shall be regarded as serious crime if, and only if—
Clause 10, as amended, ordered to stand part of the Bill.
Clauses 11 and 12 ordered to stand part of the Bill.
New Clause 5
Offence Of Disclosure
'A person who intentionally discloses a communication intercepted in the course of its transmission by post or by means of a public telecommunications system shall be guilty of an offence unless such disclosure is made—
Brought up, and read the First time.
I beg to move, That the clause be read a Second time.I do not wish to detain the Committee for long. I have no doubt that the Minister will pray in aid schedule 2. Several problems arise here. It seems to us that disclosure is a far more heinous crime than interception. Many people have to intercept communications in the course of their duties. If they disclose something to another person that is a different matter. Indeed, during the debates on what are now the Telecommunications Act 1984 and the British Telecommunications Act 1981, this was a preoccupation of hon. Members. Given that disclosure is the real crime—and I submit that the real crime is that someone who has gained information from interception discloses it to a third party — the Bill as drafted seems to us to be inadequate, which has led to the tabling of new clause 5. The proposed new section 45(2) to the 1984 Act, as set out in schedule 2, says that control should be lifted from people who make
Any detection which is made under warrant is also covered by the Bill. The only assumption that can be made is that this must be a let-out for disclosures other than those that are made under the proposed subsection (1). Indeed, it is made clear in subsections (2)(a)and (c) that the same kind of let-out exists in terms of national security. It is not part of the Opposition's case that we shall make life easier for criminals or for those who would jeopardise national security. However, we are concerned that the Bill should not contain a catch-all provision. Therefore, we have tabled new clause 5, which is perfectly straightforward. It imports the principle of schedule 2 to the main body of the Bill, but does not import the let-out that has been built into schedule 2. Therefore, I commend it to the House."any disclosure which is made for the prevention or detection of crime or for the purposes of any criminal proceedings".
I should like to draw the hon. Gentleman's attention to paragraph (f) of his new clause because I, too, proposed a new clause—new clause 6—which was not selected, but which was virtually identical to his—
It being Ten o'clock, THE CHAIRMAN left the Chair to report Progress and ask leave to sit again.
Committee report Progress.
That, at this day's sitting, the Interception of Communications Bill may be proceeded with, though opposed, until any hour—[Mr. Archie Hamilton.]
Bill again considered in Committee.
Question again proposed, That the clause be read a Second time.
I should like to ask the hon. Gentleman this question. I believe that it is important enough to ask if only because many of the amendments that have been withdrawn during the Committee stage will be debated at length in another place. Does the hon. Gentleman not think that by adding the words "to disclose evidence" and thereafter in paragraph (f), in other words, by trying to define what is meant by the public interest, he vitiates the purpose of adding that important paragraph?Subsection (2)(a), as set out in schedule 2, covers the point that the hon. Gentleman is making. It states that any person who makes such a disclosure
would be exempt from the provisions of schedule 2. I have sought to make the point that the most important areas of public interest are where a crime may not have been committed but where, none the less, it is in the genuine public interest that matters be disclosed. Will the hon. Gentleman address himself to that point?"for the prevention or detection of crime"
I am grateful for that intervention. We are trying to clarify the law as it is proposed. New clause 5 with paragraph (f) in it would entirely meet the point raised by the hon. Gentleman. It is an important point, and we must all bear it in mind. The difficulty is that the proposed subsection (2)(a) is too broad, whereas paragraph (f) of new clause 5 is narrow enough to impose a reasonable constraint upon the Executive, but broad enough to meet the hon. Gentleman's point. That was the intention behind drafting the new clause in this way. When we did so, we were minded of the new clause which the hon. Gentleman had tabled. It is not our intention to be partisan about this matter. We are trying to protect the people and at the same time allow the security services the access to information which they need. That is the entire import of new clause 5 — to prevent the sweeping suggestion in schedule 2 and to import the main point into the body of the Bill.
The Government accept that it is essential to secure proper protection of material intercepted by warrant. That is what clause 6 is all about. The improper disclosure of intercepted material is already covered by various statutory provisions. The first is, of course, section 2 of the Official Secrets Act. It covers improper disclosure by those in the Crown service, which includes the police, and it is also expressly applied to the staff of the Post Office through the Post Office Act 1969 and to the operators of public telecommunications systems through the Telecommunications Act 1984. Its application is therefore comprehensive over possible possession of intercepted material.The telecommunications side is additionally covered by section 45 of the Telecommunications Act 1984, which, as the hon. Member for Blaydon (Mr. McWilliam) said, is amended by schedule 2. The hon. Gentleman complains about the wording of subsection (2) of that section. I suggest that his criticism is misconceived. Subsection (2)(a) follows the scheme of the Data Protection Act, under which, as the hon. Gentleman knows, a person may disclose matters to the police even though the police do not appear in his registration particularly as somebody to whom he may disclose data. Therefore, I suggest that it is entirely proper that a similar scheme should be found in this Bill.
I intervene merely to point out that we opposed that section because we did not think it was sufficiently tightly drawn. Therefore, it is entirely consistent with the argument that we are now putting that this provision is not sufficiently tightly drawn.
The hon. Gentleman is clearly entitled to make that point, but it is not going to get us very far tonight because we, obviously, were satisfied with the Data Protection Act or we would not have presented it to the House. We shall have to agree to disagree on that.Given the fact that the Data Protection Act is now on the statute book the hon. Gentleman must not be surprised to find that in this Bill we have followed exactly the same scheme for the disclosure of information. On the postal side the provisions are rather older, being contained in telegraph legislation of the last century, the provisions in question making it an offence for a post office official to disclose the contents of any message entrusted to the Post Office for the purpose of transmission to any person. In addition to these offences, there are two other considerations to be borne in mind. First, the arrangements which must be established under clause 6 and which the commissioner keeps under continuing review deal comprehensively with the safeguarding of intercepted material. Thus, at a stage short of the involvement of the criminal law there are arrangements to ensure that the material is properly looked after. The Secretary of State is obliged by clause 6 to address his mind to these arrangements when he issues warrants. Secondly, as a matter of practice in the Crown service as well as in the Post Office and for public telecommunications operators there are codes of conduct covering a wide range of things, including the proper handling of material obtained during the course of people's duties. Breach of these codes can in appropriate circumstances lead to dismissal. Therefore, there are a number of pieces of legislation which bear on these matters, there is the new protection provided in schedule 2 and there is the scheme in clause 6 of the Bill. These, taken together, I would submit, meet any mischief such as that suggested by the hon. Gentleman.
I would not wish to delay the Committee by pushing this clause to a Division. I cannot say that I am entirely satisfied with the Minister's reply. It may well be that we shall seek to return to the matter at a later stage. At this stage, however, I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
I beg to move amendment No. 121, in page 11, leave out lines 4 to 6.
With this it will be convenient to take the following amendments: No. 122, in page 11, line 4, leave out from 'members' to end of line 6.No. 123, in page 11, line 4, leave out 'each' and insert 'one of whom holds or has held a high judicial office and two others'.
There is a principle in life in Britain: when in doubt about starting any particular set-up, one brings on the lawyers. I am not particularly attacking lawyers. All that I am seeking to do in amendments Nos. 121 and 122 is to end the monopoly of lawyers—in other words, to end the requirement that only people with a legal qualification can be members of the tribunal. That would not stop Ministers appointing lawyers, but they would not be obliged to do so.Amendment No. 121 gives the Minister discretion to appoint more or less than five members of the tribunal. The amendments are simple and I hope that the Minister is sympathetic to them.
Amendment No. 123 is in part motivated by the considerations which led the hon. Member for Battersea (Mr. Dubs) to move his amendment. It recognises that the Government think that the tribunal should have a quasi-judicial role, that it should therefore be presided over by a judge, and that a majority of tribunal members should have a legal background.Other experience and expertise, in addition to legal expertise, might be of value to the tribunal. Technical expertise such as that offered by hon. Members who have participated in the debate might be useful. A tribunal consisting solely of people with legal expertise might he a little confining. I hope that the Minister agrees that greater flexibility is required.
Only yesterday we decided through a Government amendment that the tribunal would act as the High Court would act on hearing an application for a judicial review. The tribunal will have a quasi-judicial role and it is therefore appropriate that lawyers should discharge its functions. I say that not because lawyers alone are able to reach balanced judgments, but because legal training is particularly desirable for members of the tribunal.We do not say that only legal qualifications are needed. The tribunal must comprise people with wide experience and proven maturity of judgment. We stick to the view that tribunal members should be lawyers but that they should not just be lawyers. The Government intend the tribunal to include in its membership people with a wide experience of affairs. That should give some comfort to hon. Members. We do not think it necessary that the tribunal should include someone who has held high judicial office. I hope that the amendment will be withdrawn.
I am not convinced, but I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule I agreed to.
Section Substituted For Section 45 Of 1984 Act
I beg to move amendment No. 126, in page 13, leave out lines 6 to 8.Without my amendment, the schedule could drive a coach and horses through the Bill. It would permit the official telephone tapper to reveal the content of any intercepted conversation to prevent or detect crime, however minor, and to give evidence at any trial of that content. The schedule is not restricted to simple metering—that is, information about the destination and duration of calls. The amendment would ensure that the use made of any intercepted material has to be covered by the Bill so that all the safeguards apply. If an intercepted message is disclosed in a manner not authorised by clause 1, an offence would be committed. The amendment takes out matters which should be covered by warrant in sub-paragraph (b) and permits information about metering to be disclosed on the order of a court. However, the contents of intercepted conversations can be dealt with only under clause 9. I hope that the Minister will undertake to give some thought to my points.
The key point is that there is a fundamental difference between the disclosure of the contents of a communication and the disclosure of so-called metering information. That is why metering is dealt with separately from interception. Intercepted material does not, in the natural course of events, come into the hands of the person intercepting, but metering information is information that is properly held by a telecommunications operator in the course of running his business Meter check printers, which record metering information, are used in a wide variety of cirumstances, principally when there is a query about a person's bill.There is no doubt that the disclosure of metering information other than for the purposes of operating the telephone system gives rise to sensitive issues and that there should be a clear statutory basis for such disclosure which sets out the grounds on which it is permissible. The Bill as drafted does this. Nor is there any doubt that access to such information can be of great assistance in the prevention and detection of crime, or in the interests of national security. It is important to realise that nothing in these provisions requires a telecommunications operator to disclose metering information. Such operators are simply permitted to do so in circumstances which are defined in a way that closely follows the precedent of the Data Protection Act 1984. The comparison between the disclosure of personal data under that Act and the disclosure of metering information is much closer than the comparison between interception and metering. British Telecom already has procedures in which disclosures of metering information for the investigation of serious crime must be approved at a senior level in its headquarters. To ensure compliance with the requirements of section 45 of the Telecommunications Act as amended by schedule 2, I have no doubt that BT and other public telecommunications operators will adopt appropriate procedures to ensure that metering information is disclosed only in appropriate circumstances. The Government believe that the procedures in schedule 2 are appropriate in all the circumstances and that this amendment should, therefore, be rejected.
I am grateful to the Minister for that explanation, which I shall study carefully before deciding whether to return to the matter. In the circumstances, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 2 agreed to.
Bill reported, with amendments; as amended to be considered tomorrow, and to be printed. [Bill 123.]