TELEPHONE CONVERSATION, READING (Hansard, 3 December 1959)

§ 94 and 95. Mr. GORDON WALKER
To ask the Secretary of State for the Home Department (1) on what grounds he authorised the interception of a recent telephone conversation in which Dr. Kenneth Merrall Fox took part, details of which have been sent to him by the hon. Member for Smethwick;
(2) why, in view of Her Majesty's Government's acceptance of the Report of the Committee of Privy Councillors on the interception of communications, presented to Parliament in October, 1957, Command Paper No. 283, there was a disclosure on 26th November, 1959, to the disciplinary committee of the General Medical Council of a record of an intercepted telephone conversation.

§ 96. Mr. W. GRIFFITHS
To ask the Secretary of State for the Home Department whether, in view of the facts revealed during the proceedings of the disciplinary committee of the General Medical Council on 26th November, 1959, he will give an assurance that Her Majesty's Government continue to accept the recommendations contained in the Report of the Privy Councillors on the interception of communications, Command Paper No. 283 of October, 1957.

§ 98. Mr. GINSBURG
To ask the Secretary of State for the Home Department why he made available to the Reading or other police, for disclosure to the disciplinary committee of the General Medical Council on 26th November, a record of an intercepted telephone conversation.

§ 101. Mr. LIPTON
TO ask the Secretary of State for the Home Department whether, in view of the recent disclosure to the General Medical Council of an intercepted telephone conversation, he will confirm that Her Majesty's Government still accept the recommendations of Command Paper No. 283 of October, 1957.

§ The Secretary of State for the Home Department (Mr. R. A. Butler)
I will, with permission, now answer Questions Nos. 94, 95, 96, 98 and 101 together.
I did not authorise the police to listen to this conversation or to transmit a record of it to the General Medical Council. I understand that the police listened on a private extension of a telephone with the consent of the subscriber in the course of criminal investigations made at the request of the deputy-coroner. This does not require any authority from me and I am informed that no infringement of the law is involved.
The Solicitor to the General Medical Council learned of the existence of a record of the conversation from the subscriber concerned and subpoenaed the police to produce it. When the subpoena was received I was consulted on the question whether privilege should be claimed and I accepted the advice given me that this would not be right.
The House will know that in general the privacy of telephone calls is safeguarded by the Post Office Act, 1953, and the Telegraph Act, 1869.
1380 Secret interception of a call on the public telephone system is practised only on public grounds on the personal authority of the Secretary of State. On this occasion the police listened in only with the consent of the party concerned.
I understand that this procedure is, as it should be, quite exceptional. It was undertaken in this case because of the special nature of the criminal investigations to which I have referred.
This is an entirely different matter from the secret interception with which the Committee of Privy Councillors was concerned. As regard this, I can assure the House that the Government will continue to see that in all areas the practice based on the recommendations of the Committee is followed.

§ Mr. Gordon Walker
Does the right hon. Gentleman realise that his statement is a disquieting one in two distinct particulars, both of which will arouse a great deal of doubt and controversy? The first is the question of secret interception. The right hon. Gentleman said that it was with the consent of the party concerned, but does he not realise that there are two parties to a conversation, and what constitutes an interception is that one of the parties was unaware that the interception was taking place and that, therefore, it was a secret interception? Does he also realise that there are two views about whether this aspect was covered by the Report of the Privy Councillors who considered this matter? Would not the right hon. Gentleman agree that the general position of the Privy Councillors was that this was so odious and great a power that it had to be restricted as much as possible? It is, therefore, important to define telephone tapping widely and strictly and that anything that might be so considered should be included in the definition and made subject to the warrant of the Secretary of State.
The second question is the disclosure to a domestic tribunal. Surely, the words used in paragraph 154 of the Report of the Privy Councillors cover completely what happened on this occasion. The Home Secretary himself accepted, on behalf of the Government, the recommendation contained in paragraph 154. We realise that there are difficulties about subpoena in this matter, but would not the right hon.
1381 Gentleman agree that this whole question is now so difficult and raises such great issues that opportunity should be given to debate it, together with, perhaps, the Report of the Privy Councillors?

§ Mr. Butler
To take in reverse order the points raised by the right hon. Gentleman, the first question is one of disclosure. I do not claim that this case is at all on all fours with the Report or the conclusions of the Committee of Privy Councillors. The sort of thing which might happen is that a subscriber may agree that somebody should listen to an extension on his telephone, which is quite a different matter from interfering with the public telephone system and intercepting at the instigation of authority. The latter is completely covered, as I said in my Answer, in all areas of the country, by the decision of the Government to accept the Report of the Committee, of which the right hon. Gentleman was a member.
Concerning the subpoena, the right hon. Gentleman will realise that this was a particular case and that, in answer to the subpoena, there was no alternative but to produce the document unless privilege had been claimed and granted. I considered this very carefully on the advice of the Law Officers and I came to the conclusion, on balance, that public interest was not to claim privilege on this occasion. I think that my judgment was right.
In regard to the second point raised by the right hon. Gentleman—that this was so odious a power—I quite agree that we do not want interception on our telephones. There can be no question of interception on the public telephone system without the authority of the Secretary of State. It is, however, almost impossible for me or any other Minister to prevent a subscriber from giving permission to somebody to listen on his extension. In the case of the police, which particularly applies in this instance, there must on occasion, I am informed, be instances in which criminal investigations are involved. I would bring to the attention of the House that this was nothing to do with the disciplinary committee of the General Medical Council, but was concerned with a criminal investigation asked for by the deputy coroner.
I do not think that this should be a general practice. From the inquiries I 1382 have been able to make, I am informed that it is very rare. After this exchange, I will make further inquiries. I do not think it is something which should be generally done, but I cannot absolutely guarantee that it will not happen on certain occasions as were shown in a leading article in The Times today, which gave certain instances when the practice might be used.
In reply to the first point made by the right hon. Gentleman about one party, when a person gives permission for a private extension, hired from the telephone system, to be used by another person, I do not think it is easy for a Minister to intervene.

§ Mr. Gordon Walker
I am sure that the right hon. Gentleman realises the difference when the telephone is used by the police making a record which might be used against the other party who is unaware of it. There is a great deal of difference between a private person eavesdropping and the police making a direct record for use of these interceptions. Surely, the right hon. Gentleman will agree with this and that, therefore, the matter comes within the intent, at least, of the Report of the Privy Councillors.

§ Mr. Butler
This could only be done by agreement with at least one party, namely, the subscriber concerned. It is not on all fours with an interception of the public system, as was agreed by the Committee of Privy Councillors.

§ Mr. Lipton
Was it not clearly understood after the Report of the Privy Councillors was accepted by the Government that in no circumstances was disclosure of private investigations to be made to an outside body or third party? Is it not ominous that the Home Secretary now holds out the prospect that it is the easiest thing in the world to ride a horse and cart through the assurance given by the Government merely by subpoenaing a policeman and then having at the disposal of a domestic tribunal any evidence or reports that the police may have accumulated in connection with quite another matter?

§ Mr. Butler
No, Sir. The Report of the Privy Councillors was concerned essentially with interception of the public telephone system under the authority of the Secretary of State. It 1383 was certainly agreed and accepted by the Government that such reports—I felt this most strongly myself—should not be passed to outside bodies. Here we have an example of the police indulging in criminal investigation and taking action which I regard, and I have so stated, as being exceptional with the agreement of one of the parties concerned, namely, the subscriber. When the subpoena arrived, the police had no alternative but to submit the document unless I claimed privilege for it, and that was when the matter came to me. [An HON. MEMBER: "Why was privilege not claimed?"] It is just as well that the Home Secretary of the day should not necessarily claim privilege and should be very careful about the claiming of it. It is an occasion for preserving liberty.
I was advised by the Law Officers that this matter was not easily covered by the statement made by the Lord Chancellor on the claiming of privilege in 1955. In my view, this is a borderline case of the claiming of privilege. I took the advice given to me and I am not sorry that I accepted it. I am, however, perfectly ready to discuss with my right hon. and learned Friends the Law Officers and with the Lord Chancellor the application of future cases and the question of privilege relating to them on the basis of that example.

§ Mr. Gordon Walker
Will the right hon. Gentleman now tell us that, in effect, he assented to the disclosure of the document before the tribunal?

§ Mr. Butler
I would have been very glad to claim privilege and hold back the document, but on advice, which was the best advice I could obtain, I thought it was in the interests of liberty that I should not claim privilege on this occasion. It is a matter of opinion. There are many lawyers who take one view or another about this, and I am certain that when there is doubt, it is the duty of the Home Secretary to come down on the side of liberty.

§ Mr. W. Griffiths
Can the Home Secretary tell us whether it is true that the police asked the lady to make the call and allow them to eavesdrop? Did the initiative come from the police? If it did, and if the police did that because they suspected, as the Home Secretary 1384 has said, that criminal proceedings might be involved, why did they not avail themselves of the procedure, with which we are all familiar, of applying to the Secretary of State for his warrant? This looks rather like an attempt to evade the limitations imposed upon them by the Birkett Committee.
This is a serious matter, because there is at present before the House a Bill designed to set up disciplinary machinery for a large number of medical auxiliaries, who will be exposed to the same conditions as was the doctor before the General Medical Council, unless the Government do something to prevent this sort of thing from happening again.

§ Mr. Butler
My information is that the suggestion was put to the lady by the police and that she agreed to it. [HON. MEMBERS: "Oh."] I am trying to give the House the facts so that hon. Members have the full story before them. It is a very difficult case. The lady was reported in the Press as having said that there was no police coercion or trickery, and that I believe to be the case.
In relation to the last point raised by the hon. Member concerning the disciplinary organs which may be set up under the Professions Supplementary to Medicine Bill, that is a matter for the House. It may well be that the offer I have just made—that the bounds of privilege should be further examined—is one which I should take up at the request of the House with my right hon. Friends and with the Lord Chancellor. It may well be that I should do that.

§ Mr. Ginsburg
Did the Home Secretary, in coming to his decision not to claim Crown privilege, have due regard to paragraph 100 of the Birkett Report which deals with a parallel situation, particularly the last sentence which reads: … the power given to the Secretary of State to issue a warrant to intercept communications, whether by letter or by telegram or telephone, is a power of such importance and consequence that it should be most rigorously confined to the purposes which convinced the Home Secretary that it was right to issue the warrant in the first place."?

§ Mr. Butler
Yes, Sir, with that I entirely agree; but that deals with the Secretary of State and his power of interception on rare occasions and for public reasons—those are the words of 1385 the Birkett Report—in relation to the public telephone system. This matter, in fact, does not come under the direct authority of the Secretary of State. In further answer to a pervious supplementary question, I will say, of course, that I should prefer that these matters did come directly under me, and then I could feel that I had more control of them.

§ Mr. Doughty
Is it not a fact that it is the duty of the police to obtain evidence where criminal proceedings are contemplated—for example, when money is demanded with menaces or threats are made—and, if they can overhear a conversation, it may assist in any such criminal proceedings, and whether the conversation is conducted over the telephone or by the parties in a room makes no difference at all?

§ Mr. Butler
Yes, I did attempt to reserve the ultimate right for the police in certain cases—one of which is referred to in the leading article in The Times, namely, blackmail—to have the possibility of recourse to action of this kind. But I have said that, in my view, it should be purely exceptional. Again in answer to hon. Members opposite, I say that I would very much rather that it came directly under me, in the straightforward procedure of the Secretary of State.

§ Mr. Grimond
Will not the Home Secretary accept that, whatever legal difficulties he may have encountered in this case, it was generally understood by the House that this was exactly a case which came under the Government's undertaking on the Report of the Committee—[HON. MEMBERS: "No."]—that is to say, that information obtained in this way would not be given to a third party? If he cannot avoid giving it to a third party, as he said, or as he thinks it undesirable to do, will he consult not only the Law Officers to ascertain whether the law needs changing but also come back to the House, as he suggested, and explain to the House exactly where he now stands? It seems to me clear that the assurances given after the Report of the Birkett Committee have not been supported.

§ Mr. Butler
I will accept that point only to a certain extent. There is, quite rightly, anxiety about a case like this, but I could not take it as being absolutely on all fours with the interception of the public telephone system, which arises out 1386 of the Report of the Birkett Committee. I agree that this case is a difficult one. The General Medical Council has the power of subpoena. There is no doubt about that; it has been given that power by Parliament. When the subpoena arrived, the only way of stopping the document appearing was by claiming privilege. Whether I was right or wrong, I acted on the best possible advice in this matter, and I think, on balance, that my decision was right. But I have agreed that in future cases of this sort I will consider the question of privilege with the Law Officers and with the Lord Chancellor.

§ Mr. Pitman
Accepting that the Home Secretary has no powers in this case, so far as the past is concerned, but looking forward to his consultations for the future, ought we not to concentrate on the word he used, namely, listen," because I should not, in any case, like it to be accepted that one party at one end of a telephone could consent that someone else should listen to what is said by the man at the other end. It may well be that this case is analogous to the passing of letters, and copyright may rest in the person who is speaking at the other end, and I think that that should be looked into. Moreover, quite apart from the matter of listening, the gravamen here was that there was not only listening but the conversation was tape-recorded and, therefore, became permanent. Furthermore, it became permanent in a form which is subject to all kinds of jiggery-pokery, because, so I am informed by people competent to say, it is possible for a tape recording to produce evidence that anybody has said anything. I hope, therefore, that the Home Secretary will look at this double point of turning a conversation into a recorded one, recorded in a medium which is subject to suspicion in the sense that it may be made to say literally anything.

§ Mr. Butler
We will certainly examine the implications of the remarks made by my hon. Friend the Member for Bath (Mr. Pitman).

§ Mr. S. Silverman
I appreciate the difficulties that the right hon. Gentleman was in, in view of the legal advice given to him arising out of the undesirability generally of claiming too freely Crown 1387 privilege against the production of Crown documents, but, nevertheless, will he bear in mind that, in the Lord Chancellor's statement to which he referred, there is the exception of a class of documents in respect of which the Crown is entitled to claim privilege against production? Will he explain how it comes about that he did not regard the acceptance which he gave to the House of the Committee's recommendations about not disclosing these matters to domestic tribunals as itself creating a class of documents for which, in every case, privilege ought to be claimed?

§ Mr. Butler
I think that it would be very difficult for me in question and answer to give a learned disquisition or satisfactory answer on privilege. If there was an occasion when I could do so, after taking further advice, I should naturally like to give the information to the House.

§ Mr. E. Fletcher
Does not the Home Secretary realise that, in some ways, this case is far more serious than the Marrinan case because here there was a telephone conversation not only intercepted by the police but instigated by the police for the purpose of performing their duties in the detection of crime? Does he not realise that the whole House was under the impression, as a result of the Report of the Birkett Committee, that, where such interception took place, it would always, first of all, require the written warrant of the Home Secretary, which was not obtained in this case but which could easily have been obtained?

§ Mr. Jay
It could have been asked for.

§ Mr. Fletcher
Secondly, where any such interception takes place and information is obtained, was not an absolute undertaking given to the House that the information thereby obtained would not be disclosed to any private individual or domestic tribunal?

§ Mr. Butler
I am aware of that, and I stand by that, because it is right. But it is impossible in this case for a Secretary of State or any Minister to be completely aware of what is happening if the matter does not come to him in the way suggested by the hon. Gentleman, namely, a request for an official interception. If that were to happen, then the case would be on all fours with what 1388 was said by the Birkett Committee. In this case, I am not myself responsible for the provincial police in any particular, and the only occasion on which this case came to me was when I was asked about Crown privilege. If I had then claimed privilege, I might, I think, have restricted the liberty of discussion and I might have done a greater disservice than I have up to date.

§ Mr. Fletcher
Will the Home Secretary bear in mind that, after the Report of the Privy Councillors to Parliament, this assurance was given in the House by the Prime Minister on 31st October, 1957: The Government accept all the Committee's recommendations and arrangements are being made to give effect to those of them which call for a change in procedure."—[OFFICIAL REPORT, 31st October, 1957; Vol. 575, c. 398.] Therefore, ought not the Home Secretary to have arranged that there should be sufficient procedure to enable his warrant to have been applied for in a case like this?

§ Mr. Butler
No, Sir; I think that anybody in the important and heavily responsible position I hold would not be able to cross his heart and say that there had never been listening either on an extension of a telephone or anything else in the whole course and range of police activities, especially in criminal investigations. What I do say is that, after inquiry and having consulted my inspectors, I find this to be a most exceptional procedure. I am very glad to hear that it is. But I cannot absolutely guarantee that such a thing will not happen in the course of criminal proceedings. What I should like to see happen is the thing done by normal intercept, with the authority of the Secretary of State, and then I know where I am, and I am answerable to the House.

§ Sir L. Ungoed-Thomas
I welcome the concern which the Home Secretary has expressed about what he has described as this borderline case, but does he not realise that his remedy of referring the matter in future cases of a similar kind to the Law Officers is utterly useless because they would, presumably, give him precisely the same advice as they gave him on this occasion? Does he not realise, therefore, that what is essential 1389 is what he indicated in his last observation, namely, that a warrant of the Secretary of State should be necessary in the exceptional cases where police listen in, as in the circumstances of this case? Is he not, in fact, inviting the House to give him authority or to endorse authority for him to make a warrant essential for the police acting in such cases as this? Will he recognise that that is precisely what the Birkett Committee itself recommended? The Birkett Committee's recommendations extended not only to telephone conversations but to interceptions of letters and documents, and does he appreciate that the Birkett Committee condemned interceptions of letters at the instigation of one of the parties to a letter and that that, therefore, completely covers the case of interception at the request of one party to a telephone conversation?

§ Mr. Butler
I did not say that I would automatically accept the advice of the Law Officers. I said that I would consult the Law Officers and the Lord Chancellor, who made the original statement in 1955, about the application of privilege, because there are two sorts of privilege in cases like this. I think that that is an offer which it is reasonable for the House to accept. [HON. MEMBERS: NO."] I think it is a sensible thing to do. There is no other way in which we can further define the application of privilege, and that is the best way to do it.
In answer to the hon. and learned Gentleman's second question, I think he must differentiate between the matters referred to by the Birkett Committee, which related to interception of the public telephone system on the authority of the Government, that is to say, the Secretary of State, and what happens occasionally when, whether in private life or in investigations by the police, permission is given by a subscriber to use a private extension hired from the telephone system. The latter is a different problem altogether and much more difficult to control.

§ Mr. Gordon Walker
Surely, this was the public telephone system. No one can ring up someone in a house without using the public telephone system provided by the Government. This was, therefore, an interception in the full sense of the word—an interception of the public telephone system.
1390 Mr. Speaker, may I ask leave to move the Adjournment of the House under Standing Order No. 9?

§ Mr. Speaker
I will hear the right hon. Gentleman in due course, but I think that that comes after the Business Question. Mr. Gaitskell.