HC Deb 02 April 1985 vol 76 cc1091-8 5.15 pm
Mr. Robin Corbett (Birmingham, Erdington)

I beg to move amendment No. 4, in clause 1, page 1, line 11, leave out from 'of' to 'the' in line 12 and insert 'the individual to whom'.

The Chairman of Ways and Means

With this amendment it will be convenient for the Committee to consider the following: Amendment No. 5, in clause 1, page 1, line 11, leave out from 'or to 'the' in line 12 and insert 'the person to whom'.

Amendment No. 6, in clause 1, page 1, line 11, after `person', insert 'not being a licensee'.

Amendment No. 7, in clause 1, page 1, line 11, at end insert 'as his residence or principal place of work'. New clause 4—Interception by person in charge of an institution— 'Nothing in this Act shall be construed as permitting the interception of a communication by post or a public telecommunication system, where such interception is made or authorised by a person or people in charge of an institution where the recipient of the communication resides, unless authorised to do so under Prison Rules made under the Prison Act 1952, Mental Health Acts or this Act.'.

Mr. Corbett

The purpose of this series of amendments is to make it impossible, in the words of the Bill, for a person occupying the premises to give consent for the interception of mail or telephone calls of all tenants or residents or even of some of them. We are told that the Government do not intend that to happen. If so, we welcome that assurance.

It cannot be right for the managers of the Grosvenor, Savoy or Ritz in London, or of the Midland, Albany or Holiday Inn in Birmingham, behind the backs of residents, to okay the interception of mail for transitory guests, all guests or, for that matter, staff. The same goes for the wardens of old people's homes, of controlled schemes or of hostels for the homeless or for landlords of houses in my constituency and elsewhere whose premises are split into bed-sits, or for employers at offices or businesses.

On the basis of clause 1(1)(b), literally millions of people, staying the odd night or residents in those types of premises, could be at risk of having every letter and phone call intercepted—opened, listened to, prised open and snooped over — and that would be part of the process of achieving a big sister state.

We accept, of course, that in cases of suspected terrorism or espionage, or where there is genuine concern over the security of the state, or where it is necessary to detect or prevent a serious crime, interception is a legitimate tool to use. But that tool should be used only as a last resort against known and named suspects and not as an excuse for a general fishing for information exercise.

It is to protect the rights of the innocent that we move this series of amendments. We hope that the Government will concede that, as drafted, the subsection is too wide, and will acknowledge that the interpretation that I have given of the provision as it stands was not that which was meant when the Bill was drafted.

Mr. Robert Maclennan (Caithness and Sutherland)

The purpose of amendment No. 5, which stands in my name and that of my hon. Friends, is broadly the same as that of amendment No. 4, save that it would apply to corporate persons as well as to individuals. I shall be interested to hear the Minister's view on that.

Mr. John McWilliam (Blaydon)

The Clause states in subsection (1)(b): with the consent of a person occupying the premises to or from which the communication is sent; or". I have had experience of putting on taps where they have been requested. I have done that when, for instance, people have suffered nuisance telephone calls. Then, with the consent of the individuals concerned, taps have been instituted to enable us quickly to trace the source of the nuisance calls.

The trouble with the clause as drafted is that it goes too wide. I feel sure that the Minister does not intend the provision to be used in the way in which it could be used—to gain the consent of a person occupying premises to institute a tap against a person who might be a sub-tenant of his—but the way in which the subsection is worded would seem to make that possible.

There is good reason for having a subsection such as this, but with the amendment, for that would ensure that people who are subject to the sort of nuisance to which I have referred could permit the authorities to detect the location of the perpetrator of the nuisance.

The amendment would mean that the drafting of clause 1(1)(b), which would make possible a rather broader interpretation, would be less wide. That is the sole point that we wish to make. We want to protect people, but we do not want people to be exploited as they could be under this clause as at present drafted.

The Minister of State, Home Office (Mr. David Waddington)

I am able to give some words of comfort to the hon. Member for Birmingham, Erdington (Mr. Corbett), the hon. Member for Caithness and Sutherland (Mr. Maclennan) and the hon. Member for Blaydon (Mr. McWilliam). The Government have only one aim in preparing the exemptions in clause 1 — to ensure that those who may properly undertake an interception are protected from committing the offence. It is a question of protecting people who behave properly in the course of their legitimate duties. None of the interceptions can take place except in obedience to a warrant. If it strays outside the terms of the warrant or extends after the expiry of the warrant, it is not covered by the exception.

The four amendments all deal with the second exception, which has been included in the Bill to meet the circumstances in which somebody may wish his communications to be intercepted. Every hon. Member in the Committee this afternoon recognises that. A person may, for example, be the recipient of obscene telephone calls. Or, if a member of his family had been kidnapped, he might wish the police to have access to recordings of all his calls. In principle, the Government believe that there is nothing objectionable in people giving consent to interception of their own communications. The objection here is to the effect of the drafting, whereby a live-in landlord could give consent in respect of a telephone shared by a number of people. That is the point made by all three of the hon. Members who have spoken.

The Government accept that in its present form the exception is cast too wide and we therefore undertake to introduce an amendment to narrow its application. The amendments that have been tabled will not work satisfactorily, however. They fail to meet the requirement to deal with both the post and telecommunications.

It is relatively easy to specify an exception along the lines which have been suggested for the post. Each letter, by its nature, is addressed to only one person and only the addressee would give his consent. But that does not work with telecommunications if people are sharing the same telephone. Until the interception has taken place, it is not possible to know whether it is for the individual concerned or for somebody else. The effect of the amendments, therefore, would be to render criminal the interception of any call on the line in question which was not for the individual who had given his consent. That cannot be right. It would mean, for example, that an offence would be committed if there were interception of a call for a member of a family who through absence from home had been unable to give his consent, although another member of the same family had.

The Government are looking at a means of dealing with the problems which have been identified, although what has been said on the amendments indicates that it is not an entirely straightforward task. However, we have given our commitment and we will find a form of words that deals with what all of us want to deal with — the situation in which a person may give his consent not in his own interest but in order to make trouble for others.

Mr. Corbett

To save me telephoning the Minister, I thank him for what he has just said will be done to meet the problems raised by us. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. McWilliam

I beg to move amendment No. 8, in clause 1, page 1, line 13, after 'the', insert 'maintenance or'.

I wish first to remedy a fault which I committed in speaking to the last amendments and declare my interest as a sponsored member of the National Communications Union, engineering section—a statement which applies throughout the proceedings on this Bill.

The problem that I find with clause 1(1)(c) is that it deals merely with the provision of postal or public telecommunication services, and there are many possible interpretations of "provision". It might mean provision pure and simple; it might mean continuing provision. I am not certain.

My intention in seeking to insert words in this clause is to protect those of my former colleagues who have to intercept a communication in order to determine the quality of service that is being given or whether faults are occurring. This is not all that straightforward in these days of advanced switching and telecommunications systems. A fault on a telephone or a line can cause problems 100, 200 or 300 miles away. The only way that these faults can be located during the maintenance of the service is by intercepting the communication and trying to trace where the fault is occurring or, having found it, trying to trace back and find where the condition is occurring on the line which is causing the fault. This is a matter not of providing service but of maintaining the standard of service.

I must stress that although, during these processes, there is interception, what is being said on the circuit is not being taken in by the men carrying out the interception. They are checking the continuity to see that speech is present. They are not attempting to make head or tail of what is being said. In these operations it is necessary to ascertain that speech is taking place. I have had a lot of experience in this and I could never remember, 10 seconds after an interception, what had been said. I was not interested in it, and my colleagues are not interested in it — unless, of course, somebody says something incredibly interesting, in which case one pricks one's ears. It is like a half-heard conversation on a bus.

The offence in such cases ought to be the communication of such information to a third party. I cannot think of any instance in the more than 20 years during which I was a telephone engineer of anybody getting into trouble for communicating snatches of conversation which they heard in such circumstances. We hear those snatches of conversation and forget about them immediately. This is not to say that telephone engineers are angels, but they are far too busy to be bothered with the problems of other individuals, and that is not the intention of the interception.

We wish it to be made clear beyond peradventure that the kind of work that needs to be done to maintain the quality of service and to trace back difficult faults can be done without the engineer's being in any danger of the law. That is the sole purpose of the amendment and we hope that the Minister will accept it.

5.30 pm
Mr. Waddington

It is quite clear from what the hon. Gentleman has said that he accepts how important it is to have this exemption. For example, a member of the staff of BT may, from time to time, need to do something that would amount to interception, although it would not usually be seen as such. If an engineer is attending to a line, he may discover the nature of a fault or whether it has been rectified only by listening in momentarily. It is an accepted practice that if a line has been engaged for a long period a caller may ask the operator to check whether the line is really engaged or whether it is faulty.

The question is simply whether clause 1(1)(c) adequately meets the position, and I believe that there is no doubt that it does. The term "provision" covers both the initial installation of a service and its continued operation — be that in its maintenance or repair or in other respects such as through the facilities offered by telephone operators.

Mr. McWilliam

I have studied the clause but have failed to find a definition of the word "provision". That is the problem. We tabled the amendment to make matters clear beyond peradventure and to rectify the absence of a definition.

Mr. Waddington

I assure the hon. Gentleman that one could not continue to provide a postal or telecommunications service unless it was maintained in a state that allowed such a provision. That is why we have no doubt that it would not add anything to the clause to insert the words in the amendment. Indeed, the introduction of the word "maintenance" could cause doubt in drafting terms on the scope of provision and may, therefore, have the effect not of clarifying the position but of excluding certain necessary elements.

On telecommunications, the narrower meaning of "provision" that would be implicit in the amended version might cast doubts on whether operator services were included, as they certainly must be.

Mr. Tam Dalyell (Linlithgow)

What are the necessary elements that would be excluded?

Mr. Waddington

If we add the word "maintenance", that obviously casts doubt on what is meant by "provision". Adding that word would suggest that the provision in the Bill did not mean what everybody would normally expect it to mean. The word "provision" must include maintenance in ordinary parlance for the reasons that I have already given. Therefore, a parliamentary draftsman would say that adding the word "maintenance" would cast doubts on the true meaning of the word "provision".

That is why we say with complete confidence that, although we are grateful to the hon. Member for Blaydon (Mr. McWilliam) for raising these important matters, I can assure him absolutely that he will not improve the protection for those who work for BT by pressing the amendment. In those circumstances, I ask him to withdraw it.

Mr. McWilliam

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Robert Kilroy-Silk (Knowsley, North)

I beg to move amendment No. 9, in page 2, line 1, leave out subsection (3).

The Bill makes it an offence to tap telephones or to intercept mail unless certain conditions specified in the Bill have been met. Anyone caught intercepting telephone communications or mail without having satisfied those conditions has committed an offence and can be fined and/or imprisoned. That, as far as it goes, is acceptable.

However, the Bill then provides that a prosecution can be mounted only with the consent of the Director of Public Prosecutions in England and Wales or the Director of Public Prosecutions in Northern Ireland. We cannot accept that, and certainly not in the absence of substantial reasons in defence of it, which presumably the Minister has at his disposal.

We cannot accept that position because the person who has been offended against — who has had his privacy invaded either by his telephone calls being intercepted and listened to or by his mail being intercepted and opened—must be able to take action on his own account. He must be able to seek redress for the offence that has been committed against him. If that individual feels aggrieved, affronted, slighted or damaged, he must be able to initiate his own course of action to gain justice.

Indeed, I should have thought that it was a fundamental principle of any criminal justice system that those who have been the victims of offences must be able to have access to the courts to remedy their grievances, even if the remedy is no more than a criminal prosecution and the consequence a fine or imprisonment.

Where an offence has been committed against an individual citizen, it is sensible that that individual should be able to initiate action against those who have committed the offence. Clearly if he is precluded—as he is by the Bill — from taking that action, he will not only feel extremely annoyed and frustrated but will suffer a substantial loss of confidence in the criminal justice system. That is not an unimportant matter, and I hope that the Minister will take it on board.

None of us wants anyone to be precluded from access to the courts, and none of us wants the results of any such preclusion to be an individual finding that he no longer has any confidence in the criminal justice system.

Mr. Alex Carlile (Montgomery)

I understand the hon. Gentleman's concern and it is important that the aggrieved citizen should have redress to the courts. But does he not think that he is going about it in the wrong way and that the effective remedy is through the civil courts? Is it not important to have a filter, such as the Director of Public Prosecutions, to avoid vexatious or frivolous prosecutions?

Mr. Kilroy-Silk

I understand the hon. and learned Gentleman's point, but I do not agree with him. A remedy in the civil courts may be possible and the hon. and learned Gentleman is entitled to table an amendment that would provide for that. However, a remedy is already provided in clause 7 of the Bill where aggrieved individuals have access to a tribunal. Clause 7(5) lays down the powers of the tribunal and states: direct the Secretary of State to pay to the applicant such sum by way of compensation as may be specified in the order. Therefore, the principle is accepted.

The Opposition believe that where an offence has been committed against an individual citizen, he should have the right of private prosecution in the criminal court.

The hon. and learned Gentleman reminds me of the deficiencies of the tribunal. Not only are there limitations on the tribunal's purview, but there are defects in the remedies that it can propose. An applicant can apply to the tribunal alleging a contravention of the rules set out in the Bill. The tribunal, on investigation, may find that there had been a contravention — that a surveillance tap was not authorised or was improperly authorized—but need take no further action. The tribunal can ask the Secretary of State to pay damages, quash the warrant and notify the applicant, but none of those actions has to be taken. In such circumstances, a citizen will be even further aggrieved if he is told by the tribunal that an offence has been committed but that no action is proposed. That is an additional reason why a citizen should be able to take action on his own account.

A further reason exists. One cannot always rely on the Director of Public Prosecutions. I do not wish to cast aspersions upon that post, or upon the individual who occupies it. I know and respect him. However, the DPP often takes a long time to reach a decision which is unacceptable to a person whose privacy has been invaded. In addition, the DPP will not give reasons for his decision. Hon. Members will remember that that was one of the causes of dissatisfaction during the inquiry into deaths in custody. The controversy was not about the DPP making the wrong decision, but because he did not give the reasons for his decision. The DPP does not explain the factors that he has taken into account before coming to a decision. When the DPP decides against a prosecution, the suspicion is that he may have been subjected to political pressure or that there is more to the issue than appears on the surface.

We are proposing no more than a mechanism to give proper rights to the individual which will also take the DPP out of the realm of potential controversy. We want to remove all doubt and suspicion from the DPP and to allow the individual to take action on his own account. There are no good reasons for not approving the amendment. We do not accept the suggestion that the amendment will result in a multiplicity of vexatious cases. A small number of justifiable cases will arise and the amendment will ensure a proper regard for and confidence in our criminal justice system.

5.45 pm
Mr. Eldon Griffiths (Bury St. Edmunds)

The hon. Member for Knowsley, North (Mr. Kilroy-Silk), all too characteristically, said that he had absolute confidence in the Director of Public Prosecutions, both in his office and his person. I agree with him. However, the hon. Gentleman said that suspicions were aroused by delays. If he believes, as I do, that the director is beyond suspicion, his duty is to reject those suspicions, not to give currency to them. I hope that the Government will resist the amendment.

Mr. Waddington

A number of criteria determine whether it is appropriate to have a DPP consent provision, inluding the need to ensure consistency in bringing prosecutions and to secure the possibility of giving due weight to considerations of public policy. It might also be essential, as the hon. and learned Member for Montgomery (Mr. Carlile) said, to ensure that the law is not abused through vexatious or inappropriate private prosecutions.

The hon. Member for Knowsley, North (Mr. Kilroy-Silk) was taken to task by my hon. Friend the Member for Bury St. Edmunds (Mr. Griffiths). I shall not get involved in that matter, but the Government do not accept the suggestion that the Director of Public Prosecutions would act otherwise than in strict accordance with his public responsibilities when determining whether a prosecution should be brought under the Bill.

There is nothing unusual in the provision. Director of Public Prosecution consent provisions apply in no less than 70 offences in English law. There can be no ground for arguing that the prosecuting authorities would be remiss or negligent in bringing prosecutions for unlawful interception when, in the light of the information available, it is appropriate to do so.

It has never been demonstrated that anything other than the highest standards of probity have been applied by successive directors. There are no grounds for arguing that those standards will be relaxed.

Special considerations undoubtedly apply to the interception offence, not because of the formulation of the offence itself, but because of the nature of the system of authorised interception. The Government have never tried to disguise that. These considerations are reflected in the special, but undeniably essential, arrangements for the secret proceedings of the tribunal. A person must not be able to discover whether he has been the subject of a warrant, or if he has, the ground on which it was issued, simply by making an application to the tribunal. It is also essential that it should not be possible to mount a civil action against the Secretary of State for the alleged wrongful issue of a warrant in a manner which would enable someone to discover such facts without having to go the tribunal. They are justifications for the existence of the tribunal. It is obvious that we cannot have a system under which a person cannot find out what he wants from a tribunal, but can discover the information through another route.

The same considerations apply to prosecutions. The purpose and value of authorised interception would be seriously undermined to the point of absurdity and genuine harm to the necessary purposes of interception if the people against whom warrants might be directed were able to discover the particular and general use of authorised interception by mounting private prosecutions. Because a warrant is a necessary defence to the clause 1 offence, there can be no general prohibition on reference to warrants in proceedings for that offence. That is the reason for the provision in clause 9(4).

It would be ridiculous if, having established the special arrangements for the tribunal and jurisdiction over the Secretary of State's decisions, the arrangements could be circumvented by the mounting of private prosecutions. Important considerations of public policy are involved which can be met only by ensuring in England and Wales and Northern Ireland, as invariably in Scotland, that there no private prosecutions. The DPP consent provision is essential if the purpose of the legislation as a whole is not to be weakened or even ultimately undermined. I hope that the hon. Member will withdraw the amendment.

Amendment negatived.

Clause 1 ordered to stand part of the Bill.

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