HC Deb 01 February 1973 vol 849 cc1773-84

11.6 p.m.

Mr. Alexander W. Lyon (York)

This debate arises out of the controversy which surrounded the leakage from the Department of the Environment of a document which was ultimately published in the Sunday Times. As a result of complaints by my hon. Friend the Member for Nuneaton (Mr. Leslie Huckfield), which he aired in a debate last night, the attention of the Press was drawn to the question of telephone tapping.

I do not want to go into aspects of the affair of the missing document or even of my hon. Friend's telephone being tapped. What I am concerned about is the subsequent publicity, which included an article in the Daily Mail, which suggested that in the past year 1,250 telephone tap warrants had been issued by the Home Secretary in relation to applications by the Metropolitan Police alone.

Because of widespread anxiety about this matter, and in view of the fact that no previous figures had been given since 1958, the Secretary of State himself, on 22nd December last, in a Written Answer to the hon. and learned Member for Darwen (Mr. Fletcher-Cooke), said: I think it right to add, in view of concern which has been expressed about the interception of telephone calls, that the procedures for authorising interception which were described in the report of the Birkett Committee in 1957 are scrupulously followed. He added that the Secretary of State considers only those applications .in connection with serious crime, which continues to be defined and interpreted on the strict and limited terms set out by the Committee."—[OFFICIAL REPORT, 22nd December 1972; Vol. 848, c. 494.] I therefore turned back to the report of the Birkett Committee—Cmnd. 283—and looked up what it said about the conditions under which warrants are authorised by the Home Office. What that Committee said was that the Home Office practice—which it approved—was set out in a letter in September 1951, which said that warrants would be issued only in the case of a crime where the offence was really serious. It also specified that: Normal methods must have been tried and failed, or must, from the nature of things, be unlikely to succeed if tried and there must be good reason to think that an interception would result in a conviction.

It went on to say that for the purpose of the warrants, serious crime was taken by the Home Office to mean an offence where a man with no previous conviction could reasonably be expected to be sentenced to three years' imprisonment. I am very glad that it is the Minister of State who is going to reply to this debate because, as a former practising barrister, he will know that that is a very rare state of affairs indeed. It is not an average burglary; it is not even the average "mugging" case: it is a very serious case where a man with no previous conviction could reasonably be expected to receive three years' imprisonment. Therefore, it is not every case where a warrant could even be considered.

Last year, which was a year of very considerable crime in this country, only 40,000 cases were dealt with in the higher courts. That means that if the Daily Mail figures are correct warrants were issued in one in 30 cases. The situation is really very much worse than that. A great percentage of the cases which are dealt with in the higher courts are cases where one would not in any case consider a telephone tapping—cases like the average family murder, cases of obscenity, cases of the kind which are classified in the statistics as theft. The average kind of case where this kind of action might be relevant would really come only in class 2 of the criminal statistics, which are regarded as burglary and other similar crimes, where the total proportion dealt with in the higher courts last year was about 16,000. In about one in 10 or 11 cases where it would be relevant a warrant was issued by the Home Secretary to the Metropolitan Police alone.

We do not know whether these figures would be greatly increased if the figures for the whole of the country had been included. I do not know whether the Daily Mail figures are correct. The purpose of this Adjournment debate is to get some confirmation of that. But I suspect that the Home Office may choose to stand upon the last part of the Home Secretary's answer on 22nd December, part of which I have already quoted, when he said that it would, as the Birkett Committee had said, be against the public interest either to publish statistics about the extent of interception or to say whether interception had been used in any particular investigation.

It is correct that the Birkett Committee did say that, but I question the wisdom of taking that kind of attitude if the growth in telephone tapping is anything like as great as has been suggested. It cannot be said that merely by giving the overall figures one warns off somebody of the ilk of the Krays or the Richardsons, or, indeed, Russian secret agents. The total volume of telephone taps would not do any more than indicate that there is a widespread use of this authority. It is that that I want to find out.

If the figure is as the Birkett Committee suggested, between 1938 and 1956 an average of 130, perhaps there is no reason for qualm. But if it has grown, as the Daily Mail suggests, by 1,000 per cent. since that time—and, indeed, according to the Daily Mail, has doubled only in the last two years under this Government—clearly the Home Secretary has allowed this exercise of police authority to grow to an alarming degree.

It cannot really be quite justified, as the Birkett Committee suggested, on the basis that the Secretary of State himself considers each one and is, therefore, the best safeguard of the citizen's right, because if 1,200 or more a year are being issued, and if one allows only 10 minutes of the Home Secretary's time to consider the warrant, that is about 200 hours' work a year for the Home Secretary in issuing warrants. The right hon. Gentleman is a hard-working Minister, but that is a considerable proportion of his working time. The fact is that he could not possibly give his time to considering whether a warrant was justified in individual cases if that volume of cases was coming before him.

In the interest of genuine public discussion of the matter, which is of considerable public importance, it is time the Government gave us some official figures about the issue of warrants. I do not think that could do any harm at all, except perhaps to the image of the Government in showing that they allow this kind of untrammelled abuse of power.

Can it do any harm that warrants are issued at this kind of level? I think it can. The Birkett Committee said that it did not really matter to the decent-living citizen if his telephone was tapped because the information was not divulged to anyone who was not in authority and, therefore, would not cause suffering to a great many people. However, there is a feeling of genuine disquiet about the possibility of telephones being tapped. My attention is increasingly being drawn to this by organisations in this country with an interest in matters of apartheid.

A number of organisations complain to me that their telephones are tapped, and they believe that it is on the authority of the Home Secretary—official tapping in conjunction with the security service. The number of complaints is increasing enormously. I have referred a number of them to the Secretary of State and others to the Prime Minister, and on each occasion I get the reply that there has been no tapping.

Whether or not that is true, the fact that a lot of honest citizens conducting activities which are perfectly lawful in this country and genuinely concerned about oppression in South Africa feel that that is possible in this country is an indication of how widespread are the fears about telephone tapping.

It would help a lot if the Minister were able to deny the Daily Mail figures and give actual figures over a reasonable period, because that would do something to minimise the widespread disquiet.

I do not believe that telephones should ever be tapped, except when there are overwhelming reasons on grounds of very serious crime or of a real threat to the security of the country, because unreasonable intrusion into the privacy of individual telephones should be avoided.

The only reason a private conversation of this nature can be interfered with is because of the monopoly right of the Government to run the Post Office. I do not think that that right gives the State any more power over the individual than is absolutely necessary for the functioning of civilised society in this country.

Unless a line is drawn now, there is a danger that this kind of practice will continue to increase.

11.19 p.m.

The Minister of State, Home Office (Mr Mark Carlisle)

The hon. Member for York (Mr. Alexander W. Lyon) has tonight raised a matter about which the House understandably has shown great concern in the past and no doubt will continue to show great circumspection in the future. I am grateful to him for raising the matter tonight if for no other reason than to give me the opportunity to dispel some of what I might describe as the somewhat alarming remarks he made towards the end of his speech, and to lay down quite clearly the approach of the Home Secretary and the Government towards the question of telephone tapping.

I accept at once that it is not easy, against our tradition of personal freedom, to accept that it may be necessary for the State, for whatever reasons, to intercept private conversations between one citizen and another. But, judging from the hon. Gentleman's remarks, I think he will agree that in certain circumstances no doubt it may be justified.

The hon. Gentleman reminded us that it is now some years since the authorised interception of communications, including telephone calls, was the subject of an exhaustive inquiry by a committee of Privy Councillors appointed under the distinguished chairmanship of the then Sir Norman Birkett. That committee published its report in 1957 and since then successive Governments, of both political persuasions, have made it clear that the principles and procedures set out in the report have been scrupulously observed. I welcome the opportunity to repeat that assurance.

It is indeed a matter for some encouragement that the committee's conclusions were clear and in such a form that the public at large can be assured that only in the most serious and essential cases will the interception of communications be authorised. I assure the hon. Gentleman that that is the present position.

The Birkett Committee referred to two areas in which a warrant for the interception of communications might properly be authorised. The hon. Gentleman has mentioned one of them, and that was the detection of serious crime. The other was the safeguarding of the security of the State. As the hon. Gentleman has very helpfully pointed out, the committee further set out with some clarity what was meant by "serious crime". As the hon. Gentleman remarked, the committee said that it meant those offences for which a man with no previous record could reasonably be expected to be sentenced to three years' imprisonment, or offences of lesser gravity in which a large number of people were involved. In addition, it is right to say that the committee recognised that there was a large area of organised crime to be found in attempts to defraud the Customs or the Revenue. The committee said that while violence might not be used in frauds of that kind, very large sums of money might be involved. In the view of the Birkett Committee, the definition of "serious crime" should also include cases which involved a substantial and continuing fraud which would seriously damage the revenue or the economy of the country if it went unchecked. That was the definition of "serious crime" as given by that committee as one of the justifications for telephone tapping on the authorisation of the Home Secretary.

The other reason, as I have said, was on the basis of the safeguarding of the security of the State. Concerning that, the Birkett Committee set out the criteria to be used before warrants were issued by the security service in the following terms. First, there must be a major subversive or espionage activity that is likely to endanger the national interest. Secondly, the material likely to be obtained by interception must be of direct use in compiling the information that is necessary for the security service in carrying out tasks laid upon it by the State.

In connection with crime the Birkett Committee also drew attention to two further checks as well as its definition of serious crime. The hon. Gentleman rightly reminded us of those. They were that in the committee's view it should be used only when normal methods of investigation had been tried and had failed or, in the nature of things, were unlikely to succeed if tried and, further, there must be a good reason to think that interception would result in a conviction.

Warrants are issued only over the hand of the Secretary of State. In the case of England and Wales they are normally signed by the Home Secretary. The requirement is that they are over the hand of the Secretary of State, but in the absence of the Home Secretary another Secretary of State is entitled to sign the warrant. Warrants which operate in Northern Ireland or Scotland are signed by the relevant Secretary of State for Northern Ireland or for Scotland. There is moreover a regular review of the warrants in operation at any one time with the purpose of ensuring that no warrant continues in operation for longer than is required for the purpose for which it was authorised.

Since the Birkett Committee reported, the Government have, as I have attempted to make clear, adhered strictly to the procedure laid down. This has been stated in Parliament on many occasions, most recently by my right hon. Friend the Home Secretary in a Written Answer to my hon. and learned Friend the Member for Darwen (Mr. Fletcher-Cooke) on 22nd December, as follows: the procedures for authorising interception which were described in the report of the Birkett Committee in 1957 are scrupulously followed. This means that police requests for interception would be authorised only by me, or exceptionally, in my absence, by another Secretary of State, and that they would be considered only in connection with serious crime, which continues to be defined and interpreted on the strict and limited terms set out by the Committee."—[OFFICIAL REPORT, 22nd December 1972; Vol. 848, c. 495.] The answer by my right hon. Friend plainly had in mind a case which had arisen in England and Wales, but the same statement could equally be made in respect of Northern Ireland or Scotland, except that in those parts of the United Kingdom warrants would be authorised by the Secretary of State for Northern Ireland or for Scotland.

Mr. Lyon

As I indicated, the principles are plain. What gives rise to concern is how the principles are applied. That can be decided only if we know something about it. If the Daily Mail figures are correct, the principles are being misapplied.

Mr. Carlisle

I have only seven minutes left in which to deliver half of my speech. I was about to come on to the figures. I hope that the hon. Gentleman will accept from what I have said already not only that the principles are plain but that my right hon. Friend the Home Secretary has specifically stated, as has been stated on many occasions, that the principles are being scrupulously adhered to, in exactly the same way as they have been under all Governments of different political complexions since the Birkett Committee's Report.

I apologise for keeping so much to the words before me, but this is an important subject as the hon. Member has said. I do not think that people would dissent from those general principles. I have referred to them in order to put into perspective what appears from time to time to be a mood of unjustified apprehension on the part of some members of the public lest the belief came about that the power to intercept communications was in some underhand manner being extended. I can assure the House that that is not so.

Having said that and having given that assurance, I must nevertheless, despite what the hon. Member said—and I shall say something about the Daily Mail—restate what has been said on many occasions: that it is not in the national interest to give details of the way in which warrants are issued or the exact extent to which the power is used. As the hon. Member said, certain figures were given in the Birkett Report itself, but it was recognised at that time that it was a once-for-all exercise. The Birkett Committee itself in recommendation 165 said that it was against the public interest for the Secretary of State to give figures of the extent of the interception of communications.

Any information about the operation of this power is bound to be of some value to those whose activities are under surveillance. As I said in reply to the hon. Member for Nuneaton (Mr. Leslie Huckfield), I am convinced that it is right to maintain the position enunciated by the Birkett Committee and reaffirmed on 17th November 1966 by the then Prime Minister, the right hon. Member for Huyton (Mr. Harold Wilson), that it has been and should continue to be the established practice not to give information on this subject.

But, despite having said that, in view of the questions that the hon. Member has asked and sticking as I do to the view that has always been taken about publication of the numbers, I can and do confirm what was said on behalf of the Home Office with regard to the allegations which were recently made in newspapers—and the hon. Member referred to the Daily Mail—as to the number of warrants in operation. I say with the complete authority of my right hon. Friend the Home Secretary that the numbers quoted in the article were ludicrously high. Equally, just as one cannot deal with the actual numbers, it is not possible to confirm or deny allegations that any interception has been authorised in a particular case.

Some hon. Members will have the experience, which certainly has been brought home to me as a Minister, of a constituent, perhaps an elderly lady, often of impeccable character, who becomes greatly disturbed or concerned by suspicions, which common sense suggests must be completely unfounded, that his or her telephone is being tapped. Any Member of Parliament in that position who has written, as Members of Parliament have from time to time written, will I am sure feel frustrated by the fact that my right hon. Friend feels quite unable to say whether or not those fears are indeed unfounded.

It is clear, however, that if such allegations of any nature were ever denied, inferences would then be drawn in cases where no denial was forthcoming, which would frustrate the purpose of such operations. For those reasons, I fear that there is no alternative to maintaining the established rules of silence about individual cases.

I was slightly surprised by what the hon. Member said about official care in relation to people or emphasis on a foreign country. Obviously I have made it clear in what I have said with regard to individual cases, but I hope the hon. Gentleman will accept what I have said about the circumstances in which any tap is ever authorised.

I repeat that all the matters of this nature which are raised are subject to the personal consideration of the Secretary of State and no interception of a telephone is authorised without his authority. Moreover, that authority is exercised within closely defined limits as set out in the Birkett Report. There has been no relaxation of the criteria laid down by that committee and followed by successive administrations since then.

I hope, therefore, that what I have said——

Mr. Lyon rose——

Mr. Carlisle

—I should like to complete this, and I have only 30 seconds left —will serve to dispel any doubts that may have been aroused by recent speculation on this subject. I do not believe that it was right for the House to attempt to press me further on details which might put at risk the success of operations which are in the national interest.

Mr. Lyon

To dispel doubts, can the hon. and learned Gentleman confirm whether, in defining security, the phrase is ever used to cover the security of any other State apart from our own?

Mr. Carlisle

At this moment I can only reply to that by the definition of security as laid down by the Birkett Committee and assure the hon. Gentleman that those terms are scrupulously abided by. As I have made absolutely clear, this is a matter wholly for the Secretary of State, and I think I must stick to what I have said, that security, is defined entirely——

The Question having been proposed after Ten o'clock, and the debate having continued for half an hour, Mr. DEPUTY SPEAKER adjourned the House without Question put, pursuant to the Standing Order.

Adjourned at twenty-four minutes to Twelve o'clock.