CONTROL OF INTERCEPTION (Hansard, 20 February 1980)

§ Mr. Bob Cryer (Keighley)

I beg to move: That leave be given to bring in a Bill to further control electronic interceptions, eavesdropping, and telephone interceptions; and for connected purposes. In 1765 in the Court of Common Pleas Mr. John Entick brought an action for trespass against a Minister called Carrington challenging a warrant issued by the Minister to seize John Entick's papers. Lord Camden, in finding for the citizen, said: To search, seize and carry away all the papers of the subject on the first warrant: that such a right should have existed from the time whereof the memory of man runneth not to the contrary, and never yet have found a place in any book of law is incredible… If it is law, it will be found in our books. If it is not to be found there, it is not law. The right of the Secretary of State for the Home Department to authorise the tapping or bugging of phones is not to be found in our books—certainly not in legislation authorised by Parliament. The nearest statute is the Post Office Act 1953. Section 58(1) of that Act permits interference with postal packets under the authority of the Secretary of State.

The first 15 pages of the Birkett report of 1957 were devoted to considering the sources of authority for tapping. Bugging was not then a matter of concern. The report sets out the procedure whereby the Home Secretary authorises each tap. Paragraph 56 states: In our opinion each warrant should in future specify the name and address or telephone number of the person who is the subject of the warrant. However, a report in the New Statesman of 1 February stated: Only the police, we were told, stick to the procedure of obtaining a warrant before placing a tap; the secret agencies have 'carte blanche'. Their activities may be covered by a general warrant, which counts as 'one' in accounts given to Ministers even though hundreds of lines may be involved. When I questioned the Home Secretary the right hon. Gentleman sought refuge in a blocking reply and thus prevented further questions for three months. Ex-Inspector Dick Lee, who headed the successful "Operation Julie" drugs investigation, is reported as deploring the risk 475 of abuse under present arrangements. He told the New Statesman: It is an executive Decision—there's absolutely no accountability. In the recent Malone case, Sir Robert Megarry, the judge in the case, said that interception is a matter which: cries out for legislation". My Bill provides an answer to that call.

Recent reports of tapping have included such wide-ranging items as the ISTC headquarters at Rotherham, where a special picket was arranged at which only the police turned up. There was phone tapping of the black participants at the Lancaster House conference. An editorial in the New Statesman of 15 February suggested that between 2,000 and 3,000 taps per year are authorised. Conservative Members have referred to bugging by the Customs and Excise that is apparently well outside the terms of cases involving: a substantial and continuing fraud which would seriously damage the revenue or the economy of the country if it went unchecked. That is a quotation from the Birkett report. Hence there is a cause for public concern.

It is against a not unsurprising background of declining public confidence in governmental institutions that democratic accountability to the House for the actions of the Government should be restored, especially on such an important issue as the interception of private telephone calls by the State. My Bill will put into legislative form some of the proposals made by the Birkett committee of 1957.

It is not part of my proposition that the police should be handicapped in their pursuit of serious crime. However, in view of continuing public concern, my Bill will require that an application for a Home Secretary's warrant to authorise interception of communications must be made on a sworn information or affidavit. That would apply Patrick Gordon Walker's view in his minority report of 1957.

Three conditions will be required for the granting of a warrant. First, the offence must be serious. It must be defined as a crime for which a man with no previous record could be expected to be sentenced to not less than three years' 476 imprisonment. If a group were involved, at least one person would have to be so regarded.

Secondly, the Home Secretary must be satisfied that normal methods of investigation have been tried and have failed.

Thirdly, there must be good ground for believing that an interception will result in conviction.

In Revenue cases the criteria in paragraph 66 of the Birkett report will apply. That means that warrants will be issued only where a case involves a substantial and continuing fraud which would seriously damage the revenue or the economy of the country if it went unchecked. The criteria for security service warrant applications will cover the same criteria as warrants for the police, but with the proviso that injury to the national interest will be an additional ground.

In his statutory annual report to Parliament, the Home Secretary will be required to define that additional ground to indicate the areas that he deems to be covered by the term. If hon. Members question that, I remind them that between 1909 and 1953 lotteries were felt to be against the national interest. Mail was intercepted over the years on that ground; hence, in my view, the need in broad terms for a statement on the issue.

The security services will be expected, like the police, to have regard to securing convictions in their applications for interception. No material obtained by warrant will be disclosed to private individuals, private bodies or domestic tribunals of any sort. That would put into law paragraph 101 of the Birkett report. A schedule to the Bill will set out the form of warrant to be used by the Home Secretary. The name, address and telephone number of the person concerned will be listed on the warrant and the period of the validity stated.

On completion of the inspection the warrant will be returned to the Home Secretary with information as to the use of the material obtained and, where any prosecution is undertaken, a statement that all tapes have been destroyed. A weekly review of warrants will be required of the police, security services and Customs and Excise and all unused warrants must be cancelled and returned forthwith to the Home Secretary.

477 The Bill will make illegal any unauthorised phone-tapping or electronic eavesdropping and will also give power to the Home Secretary to make regulations, by affirmative resolution of the House, for the control of surveillance by private organisations or individuals and the introduction of a licensing system for the security industry to ensure conformity with those regulations.

Lastly, there is the crucial element of accountability to this House. The Bill will require the Home Secretary to lay an annual report before Parliament. That report must state the number of warrants issued, though not the persons concerned. It surely is reasonable that Parliament should know the extent if not the nature of the tapping. In 1955 Birkett recorded a maximum figure of 241. If in 1982, for example, 5,241 were recorded I think that it would be reasonable that Parliament should know why.

Since the likelihood of conviction is an important justification for the issue of a warrant, it will be necessary to publish the number of convictions gained as a guide to the effectiveness of interception. The policy of national interest as defined by the Home Secretary will also be included so that any changes can be recorded and possibly debated.

This Bill will not require details of actual interceptions to be published, but 478 it will give elected representatives information about the extent of policies governing interception. My hope is that it will help to restore confidence to an area of activity which is provoking great concern, and that Parliament will once again become the guardian of democracy and accountability. At a time when the Post Office is about to change from its present electro-mechanical system to system X, which is an electronic system which will be extremely easy to tap, it behoves Parliament to ensure accountability in what is very shortly to become a completely electronic age.