SAFEGUARDS

HC Deb 02 April 1985 vol 76 cc1151-6

Mr. Bermingham

I beg to move amendment No. 51, in page 5, line 7, leave out paragraph (b) and insert—

1. `(b) that intercepted material relating to a privileged communication or not relating to the individual named in the warrent is destroyed.'.

The Chairman

With this it will be convenient to discuss the following amendments: No. 53, in page 5, line 23, at end add 'and any material which proves to be irrelevant to the investigation for the purposes of which the warrant is issued is destroyed forthwith'. No. 114, in clause 10, page 9, line 11, at end insert— privileged communication" means a communication concerning an individual which is:

1. (a) subject to legal privilege; or
2. (b) relates to medical treatment; or
3. (c) relates to an individual's physical or mental health; or
4. (d) to spiritual counselling or assistance given to him; or
5. (e) to counselling or assistance given to him for the purposes of his personal welfare by a voluntary organisation or individual who
   1. (i) by reason of his office or occupation has responsibilities for his personal welfare; or
   2. (ii) by reason of an order of the court has responsibilities for his supervision.
6. (f) relates to journalistic material which a person holds in confidence.'.

Mr. Bermingham

The amendments deal with privileged material. The official Opposition originally tabled amendments to deal with the subject. Amendment No. 51 inserts a new paragraph to ensure that intercepted material relating to a privileged communication or not relating to the individual named in the warrant is destroyed. I ask the Committee to cast its mind back to a debate earlier this evening, when we discussed international interceptions. It became apparent that in any trawl exercise and in any interception, especially if it was taking place in a block of properties or at a place where there was more than one form of telecommunication instrument and more than one source of information, it was more than feasible that among the information obtained would be much material that would not be relevant to the person named in the warrant, to the matter which was the subject of the interception or to the warrant itself.

9.45 pm

The term "privileged communication" would include conversations between a man and his lawyer, for example, or conversations between a man or woman and his or her doctor. There will be occasions when the interception will gather conversations of this character. These conversations are subject to what is known as legal privilege. Also included in this category is medical treatment, an individual's physical or mental health, spiritual counselling or assistance that is given when someone telephones a clergyman. That sort of material is not usable, because it is privileged.

In the circumstances that I have outlined, as in the other circumstances that are set out in amendments Nos. 53 and 114, I am seeking to write into the Bill a provision that ensures that when privileged material is collected it is destroyed. This material will have no material, evidential or probative value. I am seeking to amend the Bill so that it provides that such material will be destroyed.

I recognise that interception is necessary in dealing with large-scale crime, especially that involving the drugs trade and terrorism. Many other major investigations have to take place in the interests of domestic security and international security. Material will be gathered in the course of these investigations which will not relate to the person or corporate body who or which is directly concerned. I know of cases in which the "person" who was at the centre of the criminality was a limited company or a partnership. In such circumstances, I accept that the trawl and gleaning of information will gather information which is extraneous to that "person". I am merely asking in the amendment that that material will be destroyed. I am not asking for it to be given to anyone else. I am merely asking for it to be destroyed and for a relevant provision to be written into the Bill.

I recognise that the Minister may not like the wording of my amendment. However, if he takes on board the concept that lies behind it, which is that extraneous material or privileged material should be destroyed, and says that it should be redrawn, I shall not mind in the slightest. I am always happy to have my amendments redrawn if they are accepted in spirit.

Mr. Maclennan

I shall address myself to amendment No. 53. It deals with warrants which are issued by mistake against the wrong person or address, or those which name the correct person but where material has been intercepted which is irrelevant. In those circumstances, there is no obligation on the authorities to destroy any material or copies of it. The tribunal may order the destruction of copies only if contravention has been proved under clause 7(5)(b). The purpose of the amendment is to incorporate into ordinary warrants the same safeguards that apply to certified material in clause 6(1)(b).

Mr. Waddington

Clause 6 requires the Secretary of State to establish comprehensive arrangements for safeguarding intercepted material. The purposes that these arrangements have to secure are listed in subsection 2. They mean that only relevant portions of intercepted material may be disclosed or copied, that such material as is disclosed may go only to the minimum necessary number of people, that only the minimum necessary number of copies may be made of those portions that are disclosed, and that the material may be kept only for the minimum necessary period. These requirements must be read together. They impose a comprehensive limitation on what may be done with intercepted material.

The question is, therefore, about the relevance of amendment No. 53, given these comprehensive arrangements. It is clear from the terms of these arrangements — the review of which is expressly made one of the tasks of the commissioner—that gratuitous information touching on privileged communications, in the sense defined in amendment No. 114 to clause 10, would not normally fall to be disclosed, copied or retained — in other words, the arrangements already address the issue in a different way.

It was made clear in, for example, the 1980 White Paper, and subsequently in Lord Diplock's first report as monitor, that irrelevant material is not used. This irrelevant material goes much wider than the aspects covered under the term "privileged". Clearly, while intercepting the telephone line of a serious criminal, there will be no means of avoiding the interception of irrelevant and personal calls made on the line by members of his family. That point is accepted, and reference was made to it as an unavoidable consequence as long ago as the Birkett report. The clause 6 arrangements ensure that this type of material, just as with so-called privileged material, is not used. In that sense, the amendment is unnecessary.

The amendment also contains an element of unreality which, in rare cases, means that its incorporation in the Bill would have serious adverse consequences for national security or the investigation of crime. I shall illustrate that by giving a few examples. Few, if any, telephone conversations are exclusively about one subject. Things are not like that. Although it is entirely accepted and understood that legally privileged material must be properly safeguarded, there is no means of disentangling what is privileged from what is not.

Let us suppose that a suspected terrorist whose telephone was being properly intercepted, telephones his lawyer to discuss a case. What if the suspected terrorist declined an invitation to a meeting the following day on the ground that he was seeing some friends in some named foreign city? That might be the vital clue for which officers were waiting and might enable the whole gang to be arrested. Yet that information emerged during discussion about legal proceedings. Clearly it would be irresponsible not to act on it.

What if a journalist were telephoned by a terrorist whose line was tapped and he were told that something big would happen the next morning at a specified place which the journalist would like to see? It might be hoped that the journalist would pass such a clue to the police. If, for whatever reason, the journalist failed to do so, that telephone conversation — undoubtedly caught by the definition — would be the vital clue that could save lives. It would be patently absurd to require the destruction of that information.

Equally unrealistic is the suggestion that information not related to the individual named in the warrant should be destroyed. What if a warrant were directed towards one bank robber called Smith who was telephoned by his friend, a jewel thief called Jones, who revealed that he would be committing a crime unconnected with Smith and banks? Clearly the police should not have to throw away that information simply because Smith was the name on the warrant.

We agree with the spirit of amendment No. 53, which was supported by the hon. Member for Caithness and Sutherland (Mr. Maclennan). One aspect, however, makes the amendment unacceptable. This point is similar to one I made earlier. During an interception to prevent a major robbery, information could be obtained about an unconnected crime. It would be strange if that information had to be immediately destroyed. That is clearly an unacceptable consequence. Warrants are rightly directed to a purpose, but clearly information thereby gained which could save lives or prevent injury should not be thrown away, as would have to be the case if the amendment were accepted. In those circumstances, I invite the hon. Member for St. Helens, South (Mr. Bermingham) to withdraw amendment No. 51; otherwise, I must invite the Committee to reject it.

Mr. Bermingham

I have listened carefully to what the Minister said. If I understand him correctly — if he nods I shall know that I do — if we do not use the material we destroy it. I fully understand the examples given. In the course of a telephone conversation other matters may be mentioned, some of which may be privileged and some of which may be clues as to where the next "job" or crime will be committed. I fully understand why such information is kept. I should be horrified if it were not. If the vast amount of irrelevant or privileged material gleaned in the course of an interception is disposed of and not used, I am content to beg to ask leave to withdraw the amendment.

Mr. Maclennan

I was grateful to the Minister for agreeing—

Mr. Kaufman

On a point of order, Mr. Walker. May I ask for your guidance? If my hon. Friend the Member for St. Helens, South (Mr. Bermingham) seeks leave to withdraw the amendment and the hon. Member for Caithness and Sutherland (Mr. Maclennan) then speaks, does it not vitiate my hon. Friend's right to withdraw?

The Chairman

In Committee if any hon. Member seeks to address the Committee he has the right to do so.

Mr. Maclennan

rose—

Mr. Bermingham

Further to that point of order, Mr. Walker. I always understood that in Committee once a Member moving an amendment sought leave to withdraw it, his application to withdraw was then taken and refused or accepted. If it is accepted, the subject is closed. If it is refused, the debate continues open-ended and the matter has to be put to the vote.

The Chairman

The hon. Member is wrong. If, that hon. Member having sought leave to withdraw the amendment, another hon. Member wishes to speak, he has the right to do so if there is an objection to the withdrawal of the amendment.

Mr. Maclennan

I wish to advert to the Minister's comments about amendment No. 53. If the right hon. Member for Manchester, Gorton (Mr. Kaufman) was seeking to muzzle me he would not be performing a useful service to the Committee. It is necessary to clarify the Minister's response to amendment No. 53. He said that he accepted the spirit in which the amendment was moved and agreed with its purpose. He considered that it was defectively drafted in that it required the irrelevant material to be destroyed forthwith which might preclude the possible use of material which could prove to be of some value. If he takes exception to the immediate destruction of material which is irrelevant for the purpose for which the warrant is issued, will he reconsider the matter to see whether it would be possible to bring forward words which incorporate the spirit to which he assented?

Mr. Waddington

Perhaps I spoke too quickly. Let me put the position absolutely plainly. If one looks at clause 6, one finds that the requirements that have to be satisfied in relation to any intercepted material are set out, and, of course, the most important matter is contained in the very last few words of the clause. One cannot keep copies; one cannot do any of the things set out in clause 6(2) except the minimum that is necessary as mentioned in section 2(2)". Therefore, if one collects information as a result of the proper execution of a warrant, that material has to be dealt with as a result of the Home Secretary making arrangements under clause 6, but the trouble with the amendment is that it refers to material—

It being Ten o'clock, The CHAIRMAN left the Chair to report Progress and ask leave to sit again.

Committee report Progress.

Ordered, That, at this day's sitting, the Interception of Communications Bill may be proceeded with, though opposed, until any hour.—[Mr. Archie Hamilton.]

Bill again considered in Committee.

Question again proposed, That the amendment be made.

Mr. Waddington

The trouble with the amendment supported by the hon. Member for Caithness and Sutherland (Mr. Maclennan) is that it refers to material which proves to be irrelevant to the investigation for the purposes for which the warrant is issued". The difficulty is that one might have a perfectly properly executed warrant, and as a result of the execution of that warrant material is collected which is in fact perfectly relevant information, although it is not information that bears on the investigation for the purposes of which the warrant was issued.

I gave the example of the warrant against the bank robber. When it is executed, there is a telephone conversation, which is tapped, between the bank robber and the jewel thief. It would be absurd if, in those circumstances, there had to be immediate destruction of information given by the jewel thief to the effect that he was going to break into a jeweller's shop the following morning.

Amendment negatived.

Clause 6 ordered to stand part of the Bill.