HC Deb 02 April 1979 vol 965 cc1129-40

Motion made, and Question proposed, That this House do not adjourn.—[Mr. Tinn]

12.37 a.m.

Mr. Alexander W. Lyon (York)

The most convenient form of communication in our society today is the telephone. The fact that it exists in the privacy of one's house lends a sense of privacy to the conversation. Indeed, the fact that most normal conversations continue without interruption from a crossed line gives to a telephone conversation an aura which is belied by the practice.

The telephone is now an automatic instrument. But the Post Office has a system of checking the efficacy of its arrangements by tapping from time to time and listening to conversations to ensure that the system is working properly. No one who knows of that arrangement would complain too much since it is intended to help better communication. But the power to do that means that the Post Office also has the power to tap telephone calls for whatever reason. The real issue that I wish to raise is whether that power ought to be controlled.

In a recent judgment in the Chancery Division, Vice-Chancellor Megarry ruled that, since in English law there is always a freedom to do whatever is not prohibited by law, anybody can tap a telephone, or at any rate the Post Office has the power to tap a telephone for whatever purpose it likes and to pass the information on to whomsoever it likes, because there is no specified restriction upon its power.

Over the years a practice has become institutionalised of allowing the Home Secretary to issue warrants, on application by the police or the security service, to instruct the Post Office to tap a telephone and to pass on the information to the authorities. But, as Vice-Chancellor Megarry pointed out, that power has no legal authority. It is simply a way of providing some kind of check on the absolute power of the Post Office to tap a telephone if it wishes.

The truth is that the Post Office, the police and the security services do not have to ask the Home Secretary at all for his warrant if they do not want to. They could if they wished tap a telephone and use the information for whatever purpose they liked.

I have no doubt that my right hon. Friend the Home Secretary will say, as he said in a written answer, that he is quite satisfied with the existing arrangements, that they follow the recommendations of the Birkett committee, which did no more than to approve the existing arrangements at that stage, and that everything is for the best in the best of all possible worlds. But the fact is that none of us knows, because none of us knows what is happening inside the Post Office. None of us knows whether those who feel the need to tap always apply in the usual way to the Home Secretary.

For that reason, as well as the need to give an assurance about privacy, the learned judge suggested that there should be legislation in this area. I raise the issue tonight because it has long been my concern that in English law there is a great loophole. Almost all the basic freedoms which are guaranteed under the Universal Declaration of Human Rights or the European Convention on Human Rights are protected in English law, save and except the right of privacy.

For about 13 years I have been trying to bring about a law of privacy. I got to the point of a Second Reading debate with a Bill of Mr. Brian Walden's which was deflected by the then Home Secretary into a committee chaired by Mr. Kenneth Younger. I fear that that committee's report is now languishing in the Home Office, the Lord Chancellor's Department or somewhere in between. Very little has been done to implement even the rather lukewarm proposals of that report.

I still hold to my view that it would be far better if there were a civil law to prohibit intrusion into privacy, for whatever reason, save and except in special circumstances that would be decided by the statute. If there were such a law it would prevent all unauthorised telephone tapping. I would prefer to deal with the matter in that way, but the learned judge suggested that there should be a special Act to prohibit telephone tapping.

It may be that this is the first step towards protection of privacy in this area. What I am absolutely sure about is that none of us who is worried about telephone tapping will be reassured simply by the Home Secretary's assertion that he looks at all requests for authorisation very carefully and takes the decision himself. We have no way of knowing how many applications there are and whether the applications under the heads "serious crime" and "security", the two heads confirmed by the Birkett committee, are as restricted as they were at the time the committee sat, or whether "serious crime" and "security" are now more widely interpreted.

It was clear from the report of the Birkett committee that the committee considered security applications to relate to the infiltration of Communists or Fascists into areas of sensitivity in the public service and considered serious crime to be that kind of crime which would merit a sentence of more than three years' imprisonment on a first offence and which was ordinarily an offence where evidence could not be obtained in any other way and the telephone tap seemed to be a sensible way of obtaining such information. We do not know whether that is still the way in which the matter is considered and whether one still applies the same test.

The Birkett committee pointed out that the Home Office, prior to its report, had restricted the applications for warrants in relation to offences of obscene letters, and so on, because it was not then regarded as serious crime. Does serious crime still include the transmission of cannabis? Cannabis, after all, is a drug and is still prohibited. Yet the usage of cannabis in the country has now risen to such proportions that there is a strong lobby which regards smoking cannabis as nothing like as serious as it once was. Are warrants still issued in relation to the discovery, sale and trafficking of cannabis?

In relation to security, there is a fair amount of evidence that the Special Branch takes an interest now not only in Communists and Fascists or spies from other countries but in a number of political activities which raise very considerable and heated discussion as to whether there is a proper danger to the State from the activities of those who are politically Left wing or even politically Right wing but where those involved would consider that they were exercising their normal democratic rights. Are warrants issued in relation to people who are politically sensitive in that sort of way but who are not spying on behalf of a foreign Power or engaging in activities which are dedicated to overthrowing the regime in this country on behalf of a foreign Power? It would be regarded as not a proper exercise of the power to issue a warrant to police where they were concerned only with political activities within the trade unions of those exercising the democratic right to try to change the present economic system.

These questions arise simply because there is no formalised way of knowing how the Home Secretary exercises his power and in what sense anybody who does not apply for a warrant would be in breach of the law if he tapped a telephone.

The numbers given by Birkett in his report—they are the only time numbers were given—indicated that between 1945 and 1955 the number of telephone tap-pings rose by five times from 56 in 1955 to 241 in 1955. In 1973, when I had a similar Adjournment debate, the then Minister of State pooh-poohed the report in the Daily Mail to the effect that the number had risen to 1,241 and said that that was a ludicrously high figure. It would not have been out of line, however, with the rise which occurred in the 10 years between 1945 and 1955; and, as serious crime has increased since 1955, some increase is to be expected in the number of warrants issued in respect of crime at any rate. It would be helpful if the Home Secretary could now give some indication of the present scale of issue of warrants. But, again, one would really want to have a properly authorised system.

For that reason, I can only say that I agree with the Vice-Chancellor that there ought to be a Bill which would indicate that in general telephone tapping was illegal, that it could be authorised only in certain circumstances, that the certain circumstances would be set out in the Bill, that the authority would come either from the Home Secretary or from a High Court judge—I would prefer that it was from a High Court judge—and that in those circumstances the numbers would be given each year in order that there would at least be some public scrutiny of the exercise of this power.

I accept that it is unconscionable, as the judge said, that we should be so out of line with the European Convention on Human Rights, which we have accepted as part of our legislative regime, although it is not enforceable before our courts. I take the argument which he gave. I quote from the judgment: However much the protection of the public against crime demands that in proper cases the police should have the assistance of telephone tapping, I would have thought that in any civilised system of law the claims of liberty and justice would require that telephone users should have effective and independent safeguards against possible abuses. The fact that a telephone user is suspected of crime increases rather than diminishes this requirement. Suspicions, however reasonably held, may sometimes prove to be wholly unfounded. If there were effective and independent safeguards, these would not only exclude some cases of excessive zeal but also by their mere existence, provide some degree of reassurance for those who are resentful of the police or believe themselves to be persecuted For that reason, I urge the Home Secretary to reconsider the appeal of the judge that legislation is approved.

12.53 a.m.

The Secretary of State for the Home Department (Mr. Merlyn Rees)

Debates on the subject of telephone interception happen infrequently. It is not a subject which lends itself readily to debate in Parliament, partly because it is not the practice, as my hon. Friend the Member for York (Mr. Lyon) has said, to disclose any details about the use and practice of interception. That practice commands wide acceptance in the House, and I do not propose to depart from it tonight. But I welcome the opportunity of restating the principles and procedures on which the interception is based. It is an area in which there can be misunderstanding, and because of this it is perhaps no bad thing.

The first point I should like to stress is that these matters are handled personally by the Home Secretary of the day. They are not handled by anyone else— not by any other Minister and still less by officials. The principles and procedures were set out in a report of a committee of Privy Councillors, to which my hon. Friend has referred—the Birkett committee. It has formed ever since the basis for the interception of communications, and it continues to be the basis for current practice. Perhaps it would be helpful, in the short time I have available, if I were to remind the House of some of its more salient features.

First, we should consider the purposes for which interception of communications may be carried out. The conditions to be satisfied before interception could be considered were laid down in 1951 and they were endorsed by Birkett in 1957.

First, as regards interceptions for the police and the Customs and Excise, there are three requirements, all of which must be met. The offence must be really serious. That means for the police that the offences involved must be offences for which a man with no previous record could reasonably be expected to be sentenced to three years' imprisonment, or offences of a lesser gravity in which a large number of people were concerned. For the Customs and Excise, the case must involve a substantial and continuing fraud which would seriously damage the revenue or the economy of the country if it went unchecked.

Normal methods of investigation must have been tried and failed or must, from the nature of things, be unlikely to succeed if tried.

There must be good reason to think that an interception would result in a conviction.

The Birkett committee stated in paragraph 67 the principles concerning interception on behalf of the security services. It said: There must be a major espionage or subversive activity that is likely to injure the national interest. … The material likely to be obtained by interception must be of direct use in compiling the information that is necessary to the Security Service in carrying out the tasks laid upon it by the State. These continue to be the requirements today.

The Birkett committee endorsed the use of interceptions by the police, Customs and Excise and the security service, and in paragraphs 141 and 142 of its report it said: In the first great field where the power has been and is exercised—that of national security—we feel no doubt at all in recommending that the powers of interception should continue to be used, subject to the conditions and safeguards", which it set out. On the police side, it said: The police ought not to be handicapped in their efforts to prevent or to detect crime, whilst the criminal is allowed to use every modern method to achieve his purpose. It went on to say: If the police were to be deprived of the power to tap telephone wires in cases of serious crime, the criminal class would be given the use of the elaborate system set up by the State and use it to conspire and plot for criminal purposes to the great injury of the law-abiding citizen. The telephone could then be used with impunity to arrange the last-minute details, for example, of a mail van robbery, a theft on an organised scale, an assault with robbery on a citizen, or indeed any form of crime. I do not believe that anybody would question the arguments for having access to this means of investigation for the purposes of preventing or detecting serious or violent crime, or of protecting the essential security of the State. Where the room for argument lies is the extent of its use and the safeguards to which it should be subject.

The Birkett committee was in no doubt that this power needed to be exercised with the greatest care. The most important aspect relates to the authority required for telephone interceptions. This may be done only on the personal authorisation of the Secretary of State. In England and Wales, that is me. In Scotland, it is my right hon. Friend the Secretary of State.

Again in terms of authorisation, I consider every application for interception myself, and that is equally true of my right hon. Friend. I decide whether it matches up to the criteria that I gave a few minutes ago. Unless I am satisfied on this score, the application is rejected.

The police cannot intercept communications on their own account; nor can the security service or the Customs and Excise. None of these agencies has either the authority or the means to secure the interception of communications other than by following the prescribed procedures, which involve applying to me, by signing the warrant, and the Post Office carrying out the warrant.

Only the Post Office has the technical means to intercept communications, and the Post Office will not intercept communications other than under that warrant. Any official of the Post Office acting other than under that warrant would commit a criminal offence.

There are those who argue—my hon. Friend did not—that the Home Secretary must be far too busy a man to consider all these applications personally, so that these matters must obviously be delegated. This is not so. The task is not, and should not be, delegated, and there is no other way in which interception may be carried out. The system depends upon personal consideration and authorisation by the Secretary of State of every application for an intercept.

The Birkett committee recommended a number of other safeguards. These, too, continue to be followed strictly. They relate to the number of people who have access to the intercepted material being kept to a minimum, to regular reviews of outstanding warrants, to the period of time for which warrants may be valid when they are signed, to the cancellation of warrants, to the particular details to be set out on the face of each warrant, to the keeping of records, and so on.

The Birkett committee dealt with the question of the statistics on interception. All the agencies concerned thought that the disclosure of the statistics of interception would impair its effectiveness as a means of detection. The Birkett committee was particularly anxious about interception on behalf of the security service. It said in paragraph 121: We are strongly of the opinion that it would be wrong for figures to be disclosed by the Secretary of State at regular or irregular intervals in the future. It would greatly aid the operation of agencies hostile to the State if they were able to estimate even approximately the extent of the interception of communications for security purposes. This leaves the field open, of course, to those who say that the number must be very large because the Government will not say what it is. That is a disadvantage, and I am conscious of it. A future Government may want to consider whether there is any way of overcoming it without incurring the risks which the Birkett committee feared. I do not propose to break the rule tonight, at this stage of this Parliament, but I will say this. The actual numbers are far below the guesses that have recently been given some currency, but I am aware of the problem in that respect.

The principles and procedures continue to follow those recommended by Birkett. My own belief is that the criteria on which interception is based continue to hold good and that the safeguards against abuse are the most effective we could devise.

My hon. Friend has reminded the House of some of the points made by the learned judge in a recent case before the Vice-Chancellor. He confirmed—my hon. Friend has made the point quite fairly—that telephone tapping was not illegal but suggested that whatever safeguards are appropriate should be embodied in legislation. When the judgment in that case was made known, I made a full statement because I thought it right to set out clearly the Government's position on so sensitive and important a matter. I said: I understand that in his judgment in Malone v. Commissioner of Police, the Vice-Chancellor found that the interception of a telephone at the request of the police under warrant of a Secretary of State was not illegal under English law. He made it clear that it was not for the English courts to rule on the question whether such interception, as carried out in this country, did or did not comply with the European Convention on Human Rights. Only the European Commission and Court of Human Rights could pronounce on that. The Vice-Chancellor drew attention, however, to the fact that the restrictions and safeguards under which interception is conducted are in this country matters of administrative practice only and not, as in some other countries, of statute; and he expressed the view that this was a matter which cried out for legislation. As regards the European Convention, I am in the same position as the Vice-Chancellor. It is not for me to say what does or does not comply with it. All I can say is that neither the Commission nor the Court has had occasion to consider our practice in this matter. I understand that the plaintiff in the recent action may be considering taking a case to the European Commission. If he decides to do so, we shall see what they say. Legislation is not required to legalise telephone interception. If it is required at all, it would be for the purpose of entrenching in statute the appropriate restrictions and safeguards under which interception is practised. The restrictions and safeguards applicable in this country were scrutinised and commended in 1957 by the Birkett committee. Their report has ever since then provided the basis on which interception is carried out, and I can assure the House that it continues to do so today. I recognise the importance of adequate and effective safeguards for the liberty of the subject. I believe that our safeguards are adequate and effective for this purpose. The Vice-Chancellor clearly thought that safeguards should be entrenched in legislation. When the full text of his judgment is available, I shall study it with the greatest care and respect. In carrying out the study and arriving at conclusion, of which I will in due course inform the House, I shall have regard not only to the need for safeguards which protect the liberty of the subject but also to the need not to damage the efficacy of a tool of investigation which can be invaluable to the police and the other agencies concerned when other methods have been tried and have failed, or are unlikely to succeed. As the Birket committee said, such damage, so far from strengthening the liberty of the ordinary citizen, might very well have the opposite effect. There is nothing that I can add to that.

We in the Government are carefully studying the Vice-Chancellor's judgment, which runs to 66 pages of typescript. We are considering its implications. What my hon. Friend has said will also be taken into account. But it is too early to make any further statement.

I acknowledge that this is a difficult and sensitive subject. Considerable secrecy is essential to operational effectiveness, and that means that a Minister cannot take the course of allaying concern by publishing information. The essential element in our system—I have thought carefully about this—is that successive Parliaments have been prepared to repose trust in successive Home Secretaries. That is its own safeguard, because none of those concerned—Ministers, officials, and agencies—would ever wish to do anything to abuse that trust or to call it in question.

I can assure the House that in my period of office I have been deeply conscious of that trust and have at all times been at pains to preserve it. I have no doubt that that will continue to be true of future Secretaries of State as it has been of me and my predecessors. A judgment has been made, and I am considering it very carefully. I will at the appropriate moment—it might sound a little odd tonight—make a further statement.

Mr. Alexander W. Lyon

My right hon. Friend said that if a telephone tap took place without the authority of the warrant it was a criminal offence.

Mr. Rees

Yes.

Mr. Lyon

But if the Vice-Chancellor had ruled that there was no prohibition against telephone tapping anyway, how could it be a criminal offence if a telephone was tapped without a warrant?

Mr. Rees

The authority for doing that can come only from me. It is a criminal offence if it is done without my authorisation to the Post Office. I should be happy to discuss that matter with my hon. Friend. I am confident that there is no way of doing what he refers to. I am equally confident that it is a criminal offence.

Question put and agreed to.

Adjourned accordingly at seven minutes past One o'clock.