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Telephone Tapping

Volume 173: debated on Thursday 24 May 1990

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

12.30 pm

You will recall, Madam Deputy Speaker, that in 1985 one of your predecessors announced to the House that the Queen had graciously assented to the passage of the Interception of Communications Act. It was the result of long concern in the House, among the public, and, in particular, among the personnel of British Telecommunications. I am particularly pleased that today's debate is attended by my hon. Friend the Member for Blaydon (Mr. McWilliam), who has a long record of representing the union that organises members within British Telecommunications.

The Act was not forced on the House by public pressure, nor by the unease of British Telecommunications' employees. It was forced on the Government by a decision of the European Court of Human Rights in the Malone judgment. The Act provides the minimum degree of protection and it is deeply flawed in several ways. First, it provides a remedy only to those who are able and choose to complain about their telephone having been tapped. That implies that the person concerned knew of the tap in the first place and of the nature of its operation. In 99 out of 100 cases there is no such knowledge. Moreover, there is no requirement in the Act to inform the subject, either subsequently or during tapping, that the tap is in place.

An amendment moved to the Bill before it was enacted is highly relevant to this Adjournment debate. It would have provided immunity to employees of British Telecom should they choose to report what they believed to be an unauthorised and unlawful tap. The amendment was rejected by the then Government.

Perhaps the biggest flaw of all is that the Act created an interception of communications tribunal to which an aggrieved member of the public could complain. However, the tribunal is limited to investigating only those cases where a warrant has been issued to identify whether a warrant has been properly issued. It has no authority to investigate whether a tap has been placed without a warrant. If the aggrieved complainant has a tap placed without a proper warrant, the tribunal cannot proceed further. It will not notify the aggrieved complainant that his or her telephone has been tapped without a warrant. All that happens is that the complainant receives a response from the tribunal concluding that there has been no contravention of section 5(2) of the Act.

That information can mean one of two things: either that a warrant was properly granted and the tribunal, having examined the matter, has concluded that there was full authority and therefore no contravention of the Act, or that there was no warrant and no authority and the tap was placed unlawfully, but the person receiving that information was none the wiser and did not have the information available for further action.

As a result of the Act at least we have an annual statement from the commissioner of the tribunal who provides a report on the scale of telephone tapping. I have with me the most recent report that provides figures for the warrants issued by the Home Secretary and the Secretary of State for Scotland in each year since 1985. There is an intriguing feature to those figures in each of those five years as the number of warrants issued in Scotland is far higher pro rata of population than the number issued for England by the Home Secretary. If one made a simple arithmetical calculation based on population—I appreciate that that is a crude approach to a complex subject—the number of warrants issued in Scotland is consistently 50 per cent. higher than the number issued in England. I find that puzzling as I am not aware that Scotland is facing a significantly greater terrorist or subversion threat than the metropolitan areas of England. I would appreciate some guidance from the Minister when he replies about why a consistently larger number of warrants is granted in Scotland than in England.

The great omission from the report is that the figures provided by it relate only to the warrants issued by the Home Secretary and the Secretary of State for Scotland. They do not cover any warrants or authorisations issued by the Foreign Secretary. That is a critical point as there is a growing belief that most telephone tapping, given the sophisticated nature of electronic communications, is now conducted by GCHQ—not MI5 or special branch—which answers to the Foreign Secretary and therefore obtains its authorisations from the Foreign Office.

Two weeks ago a senior official of the National Communications Union was quoted in The Guardian as saying:
"If there was an independent investigation into the number of taps at any one time, the public would be amazed"
Against that background I want to consider the specific case of my constituent, Mr. T. McSherry. The history of his experience can be briefly told. Mr. McSherry is the acting manager of the telephone exchange in Livingston new town, in my constituency. He experienced a pattern of interference on his home telephone line and, being a technician and the acting manager of the telephone exchange, he reasonably decided to sort out the problem himself. He climbed up a set of stairs and traced his line in the attic of the excQhange. I am sure that "attic" is not the proper term, but my hon. Friend the Member for Blaydon will put me right on that.

In a remote corner of the telephone exchange Mr. McSherry found that a device had been placed on his line, which he traced to a connection in Edinburgh. As he is a technician for British Telecom, he is capable of recognising a telephone tap. Just to be certain, however, he summoned two fellow qualified engineers in the exchange to act as witnesses to the existence of the device and to the probable explanation of the device as a tap on his home telephone line.

British Telecom has since responded to that alarming discovery by explaining that the device was one that it had placed on a number of telephone lines at random at the request of Oftel to provide random checks on the precision of the billing mechanism of British Telecom. That device would record all the telephone numbers that were called by that line.

There are, however, a number of problems with that explanation. First, British Telecom initially responded that it had been unaware that the line belonged to one of its employees because the line was in the name of the employee's wife. That is factually incorrect: the line is in the name of Mr. McSherry and the bill is sent to him. Secondly, it is inconceivable that any engineer intending to place such a device on a line to provide a check on the billing and pricing mechanism on that line would climb to the top of the exchange, go round the back of the display unit and place the device in a hidden corner of the exchange. Any engineer placing a number of such devices on a random basis will put them in places of the greatest convenience to him and not in places of the greatest concealment to other workers in the exchange.

The reason why the explanation seems implausible is that Mr. McSherry is the acting manager of the telephone exchange. It seems unlikely that British Telecom has been through an exercise of placing random checks on lines in his telephone exchange without him or anyone else in the exchange being aware of it.

I declare my interest as a Member sponsored by the National Communications Union. I have checked the matter about which my hon. Friend is speaking. The device discovered was not of the nature of a device normally used to check meters. The witnesses who checked out the existence of the tap found that it was just that—a tap.

I am grateful to my hon. Friend, who speaks with great technical qualification. We have, then, a situation in which three employees of British Telecom, all skilled and qualified personnel, recognise a tap placed on a line of an employee of BT.

I have had two full discussions with my constituent seeking to identify whether there is any basis for Mr. McSherry becoming a legitimate target for surveillance, and I must report that I am baffled. Mr. McSherry has no criminal record, he has not the remotest link with any terrorist organisation, he has not been particularly active in his union, and he is not a member of any political organisation or has any history of political activity. I do not, in saying that, concede that had he been a trade union activist or a member of a political party he would have been a legitimate target for suspicion. I merely report that he was not, which makes it even more baffling to understand why anyone in the security services should have regarded him as a legitimate target for surveillance or why he should have become subject to a telephone tap.

I also report—I do so without necessarily endorsing it—that there is a suspicion in some quarters that, as Mr. McSherry at the time was the acting manager of the exchange, there may have been a desire on the part of people in higher quarters of BT to assure themselves of Mr. McSherry's loyalty and soundness before making his appointment and promotion permanent. I am not in a position to take a view on that. But if it is indeed the case that the tap was not placed by the security services nor by BT acting for them, but that BT so acted without warrant, then BT committed a criminal offence, and we should view that with gravity.

I wrote to the Secretary of State—as I am sure the Minister will have been briefed—drawing attention to the situation, and I can report satisfaction to the extent that, within days, the tap was removed from the line. I have subsequently received a reply from the Secretary of State providing me with a leaflet about the interception of communications tribunal, but not much else. I wish to share with the House this critical passage in that letter:
"If Mr. McSherry believes that his telephone is being unlawfully intercepted, he should report his suspicions to the police. The police cannot, however, investigate questions relating to any interception which may have been authorised by the Secretary of State under section 2 of the Interception of Communications Act 1985. This is a matter for the Interception of Communications Tribunal."
There followed a passage saying that I was being sent a leaflet about that tribunal.

The problem with that response is that at present neither my constituent nor I knows, nor are we informed by the letter, whether the interception was authorised. Moreover, the House will recall from my opening remarks that should we complain to the interception of communications tribunal and it finds that it was not properly authorised, it will not tell us. The tribunal will merely report that it has not found a contravention of section 2 of the Interception of Communications Act 1985.

That begs an interesting problem for my constituent and I. We have evidence that there was a tap, that that tap was witnessed by three people each of whom was qualified to recognise a tap and that there is patent evidence on which one could go to the police and say that an interception took place and that it should be investigated to identify whether there had been a criminal offence. But to go to the police we are first required to know whether the tap was authorised, because, if it was, the police have no role in the matter.

I have sought to raise this matter before in circumstances in which a Minister must reply, and the critical question for which one looks to the Minister for guidance is whether we should properly complain to the police because the tapping was not authorised or properly complain to the tribunal because it was authorised. Even in terms of the Secretary of State's reply, we are entitled to that guidance to know which authority to place our complaint before.

I raise the case partly because I have constituents, both Mr. McSherry and his wife, who have been much distressed by the experience and believe that they have a legitimate grievance. I also have constituents who are fellow employees of Mr. McSherry in the telephone exchange and feel a degree of stress because when one of their colleagues comes under surveillance it brings into question their own relationship with British Telecom. However, it is not just to ventilate the grievances of those constituents that I use the procedure of the Adjournment debate. I do so also to raise the wider issues that arise out of my constituents' history.

If a telephone exchange manager is not safe from being tapped, which member of the public is? If the manager of a telephone exchange, owned and run by British Telecom, cannot obtain satisfactory replies to his inquiries and representations at British Telecom, which member of the public or British Telecom client can? That is why I have raised the matter in the House. I hope that the Minister, who has 15 minutes in which to respond, will be more forthcoming than the Secretary of State has been by letter or British Telecom has been to its employee.

12.46 pm

The Parliamentary Under-Secretary of State for Scotland
(Lord James Douglas-Hamilton)

In the course of his remarks the hon. Member for Livingston (Mr. Cook) asked about the number of Scottish warrants. I cannot comment on the number of Scottish as opposed to English warrants, but the commissioner has attested in his annual report to the fact that all Scottish warrants have been properly issued for the correct purposes.

I listened with great care to what the hon. Gentleman said about the alleged tapping of his constituent's telephone line. I can confirm that the hon. Gentleman wrote to my right hon. and learned Friend the Secretary of State on 3 April this year and received from him a letter outlining the action open to his constituent if he believed that his telephone calls were being unlawfully intercepted.

It has been the convention of successive Governments not to discuss individual cases of alleged interception. I have no intention of departing from that practice today. Therefore, I have no comment on the allegation made by Mr. McSherry, which, in the first instance, is a matter for British Telecom. Thereafter, Mr. McSherry may wish to take account of the advice in the letter of my right hon. and learned Friend to the hon. Member for Livingston to the effect that, if Mr. McSherry believed that his telephone calls were being unlawfully intercepted, he should report his suspicions to the police. The letter of my right hon. and learned Friend also informed the hon. Gentleman that questions relating to any interception that may have been authorised by a Secretary of State under section 2 of the Interception of Communications Act 1985 are matters for the interception of communications tribunal. Therefore, it may be helpful to the House if I explain the provisions of the Act and the protection it affords the individual who believes that he may be the subject of unlawful interception.

It was a Conservative Government who introduced the Interception of Communications Act 1985, which put on a statutory basis for the first time the framework and procedures for the lawful interception of communications. One of the most important aspects of the Act, and one to which Parliament gave particularly close attention, was the need to provide protection for the individual by making unlawful interception a criminal offence. The Act also sought to provide an effective means of redress for any individual in respect of whom a warrant had been improperly issued. I shall deal in more detail with those important points in due course.

The Government believe that the properly controlled interception of communication for certain limited but important purposes is not only justified but essential in the public interest. For example, major criminals, or those engaged in subversive terrorist or espionage activity, should not be free to make use of the postal or telecommunications systems to further their activities with immunity from protection.

If normal methods of investigation are not available, it is right that the means should exist to obtain information about such activities through the interception of communications, as long as this is carried out under clear safeguards and strict controls. Interception has made possible the prevention and detection of serious crime, including major robberies, crimes of violence and, increasingly, drug offences, and has led to the prosecution of those responsible. It has also been vital in the prevention of terrorism and for safeguarding the security of the nation.

The Interception of Communications Act 1985 empowers Secretaries of State to issue warrants for the interception of communications. The postal and telecommunication companies to whom the warrants are addressed are obliged to disclose the contents of the communications covered by the warrants. My right hon. and learned Friend signs warrants in respect of Scotland at the request of the police and Customs and Excise for the purpose of preventing or detecting serious crime and at the request of the police in certain counter terrorist cases. The circumstances in which warrants can be issued, the criteria applied and those to whom the intercepted material can be disclosed are set out in section 2 of the Act.

In relation to warrants that are issued by my right hon. and learned Friend in respect of serious crime, I should perhaps explain that section 10(3) of the Act defines serious crime as conduct which, being an offence, involves the use of violence, or results in substantial financial gain or is conduct by a large number of persons in pursuit of a common criminal purpose, or is an offence for which a person of 21 years or more without previous convictions could reasonably be expected to receive a term of imprisonment of three years or more. For warrants issued in respect of counter terrorism, my right hon. and learned Friend must be satisfied that there is terrorist activity likely to injure the interests of national security. Section 2 of the Act also provides that my right hon. and learned Friend would not consider a warrant necessary unless the information required could not reasonably be obtained by other means.

As I have already said, the Interception of Communications Act provides very clear safeguards and controls and it is important that I should remind the House of these. Under section 1 of the Act it is a criminal offence for any interception of communications in the public telephone and postal systems to take place outside those statutorily provided for by warrant signed by a Secretary of State. This is a key protection for private communications. The interception of communications is a most serious matter and having committed their communications to the public systems members of the public are entitled to expected confidentiality. The improper use of information gained from unlawful interception could have very serious consequences for individuals personally, for their businesses or in other ways. The seriousness of the offence of unlawful interception is reflected in the maximum penalties available. On conviction on indictment an accused could face imprisonment for a term not exceeding two years or a fine or both.

I do not think that any of us takes issue with interception of communications in the context of the crimes that the Minister mentions. In 1983 the Government had a chance to make interception of communications lawful for such crimes but they voted down my amendments to the Telecommunications Bill. Those amendments gave proper redress to citizens who thought that they might be unlawfully tapped. At the present time citizens have no redress.

I appreciate that the hon. Gentleman tabled amendments when the Telecommunications Bill was being debated. However, in this debate the principle is absolutely clear. It is the normal practice of Ministers neither to confirm nor to deny suggestions that interception has taken place. The courses of action open to people who believe that their telephones have been intercepted are evident. They may either approach the police or complain to the interception of communications tribunal.

I should like to pursue that specific point. The Minister is right to say that the Secretary of State has pointed to those two alternatives which are available to my constituent. The problem for my constituent and me is that the police cannot investigate tapping if it was authorised and the tribunal cannot investigate it if it was not. Before we can follow the Secretary of State's advice, we need to know whether the tap was authorised because, without that information, we do not know to whom we should take our complaint.

The hon. Gentleman answered his own question in his letter of 3 April, when he wrote to the Secretary of State for Scotland as follows:

"I would myself of course like to know whether a warrant has been issued in this case, but appreciate that you may not be able to confirm or deny the existence of such a warrant."
Questions of interception under the Act involve matters of national security or serious crime. To discuss publicly details of any individual case would risk compromising that system, which I am not prepared to do. However, during the debate I hope that I shall succeed in explaining the safeguards and controls in the system.

The police have a role in investigating complaints made to them about unlawful interception. They cannot, however, investigate questions relating to the propriety of any interceptions that have been authorised by a Secretary of State under section 2 of the Act. For that purpose, the 1985 Act established an independent tribunal to investigate complaints about the improper use of the power of the Secretary of State to issue, renew, modify or cancel warrants. The tribunal president is Mr. Justice Macpherson of Cluny and the other members of the tribunal are senior figures in the legal profession. The tribunal is quite independent of Government. It acts only on receipt of an application and it determines whether there has been a warrant associated with the applicant in the manner specified in the Act, and for that purpose it has full powers to call on any official documents or information that it may need.

If a warrant exists, the tribunal investigates whether there has been any contravention of the Act in relation to it, applying for that purpose the principles of judicial review. If it concludes that there has been a contravention, it must give notice to the applicant of its conclusion and it is required to report its findings to my right hon. Friend the Prime Minister. I should, however, make it clear that only if it concludes that there has been a contravention does it inform the applicant of the existence of a warrant. The tribunal can also take a number of other steps if it concludes that a contravention has taken place. It can quash the relevant warrant or order the destruction of material intercepted under it and award compensation to the applicant. There is no appeal against the tribunal's decisions.

The Act also provides for the appointment of a commissioner to keep under review the carrying out by the Secretaries of State of their functions under the Act. The Act requires that the commissioner shall be a person who holds or has held high judicial office, and since the commencement of the Act in 1986 that task has been carried out by Lord Justice Lloyd. The commissioner has the task of reviewing the system of authorised interception and has access to those who are engaged in it in order to establish whether the system is being properly conducted.

The commissioner is concerned with both statutory requirements and administrative procedures. He also has a duty to give the tribunal all the assistance it may require. He is therefore able to advise the tribunal, as it may see fit to ask him, on any matters falling within his knowledge that are relevant to the tribunal's functions under the Act. In turn, the tribunal is required to send the commissioner a copy of every report it makes to the Prime Minister in any case where there has been a contravention of the provisions of the legislation falling within his jurisdiction. The Act also requires the commissioner to make ad hoc reports to my right hon. Friend the Prime Minister if at any time it appears to him that there has been a contravention of those sections of the Act empowering Secretaries of State to issue warrants which have not been the subject of a report by the tribunal. In addition, the commission is required under the Act to make an annual report to the Prime Minister, as soon as practicable after the end of each calendar year, on the carrying out of his functions. The Prime Minister is required to lay before Parliament a copy of every annual report submitted by the commissioner.

I hope that that explanation demonstrates the seriousness with which the question of interception is dealt with, the explicit safeguards against unlawful interception that are provided for by the 1985 Act and also the remedies for unlawful interception that are available. Hon. Members who wish to assess in detail the operation of the Act may care to refer to Lord Justice Lloyd's annual reports—as indeed, the hon. Gentleman did. I appreciate that this is a sensitive and controversial matter, but the Interception of Communications Act 1985 provides a very tightly controlled framework within which Secretaries of State must operate. I hope the whole House will be reassured in the light of what I have said that matters relating to interception of communications are given very careful attention and are fully subject to the controls provided for in the Act.