§ Mr. Kevin Barron (Rother Valley)
I beg to move amendment No. 57, in page 5, line 33, at end insert—'(a) whether interception has taken place.'.
With this it will be convenient to take the following amendments: No. 58, in page 5, line 38, leave out '2' and insert '1'.
No. 59, in page 5, line 38, leave out '5' and insert '6'.
No. 62, in page 5, line 40, leave out '2' and insert '1'.
No. 55, in page 5, line 40, leave out from '5' to 'they' in line 41.
No. 63, in page 5, line 41, after 'certificate', insert'or that there is evidence that an offence under section 1 above has been committed'.No. 67, in page 6, line 2, at end insert—'(4A) If on an investigation the Tribunal concludes that there was no relevant warrant or certificate and it appears to them that an offence under section 1 above may have been committed, they shall—
No. 72, in page 6, line 17, after 'been', insert 'no interception and'.
- (a) give notice to the applicant stating that conclusion; and
- (b) make a report to the Secretary of State.'.
No. 73, in page 6, line 18, leave out '2' and insert '1'.
No. 74, in page 6, line 18, leave out '5' and insert '6'.
No. 75, in page 6, line 19, at end insert'or that there is no evidence of any offence under section 1 having been committed as the case may be'.
§ Mr. Barron
I should like to draw attention to a bad flaw in the Bill. The amendment would oblige the tribunal to investigate whether an applicant had suffered interception. At present, the Bill makes the tribunal investigate only the Secretary of State's compliance with the bureacratic procedures that are required for interception, and fails to deal with the possibility of unauthorised interception. I am moving amendment No. 57 because my hon. Friends and I believe that the protection of the individual's civil liberties should be implicit in the Bill.
Amendment Nos. 62 and 73 are consequential. The idea is to bring in clause 1 so that the tribunal can inform an applicant who applies to the tribunal for investigation whether he has been the victim of improper interception.
If the amendments are passed, the tribunal will have to tell the applicant either that there has been a contravention 1157 of clause 1, 2, 3, 4 or 5 or that there has been no contravention. In the former case, it must mean that the applicant was intercepted when he should not have been—in other words, that the interception was unauthorised or should not have been authorised. In the latter case, the position is ambiguous. Either the applicant was never intercepted at all, which is the most likely explanation, or the interception was carried out under a properly authorised warrant. Thus, the suspected criminal or terrorist could not use the tribunal to check whether he was under interception.
I feel strongly that people should not have to be told when they are being properly intercepted, but the Bill should provide protection for individuals who are improperly intercepted. At present, there is insufficient protection. Amendment No. 57 and the consequential amendments are therefore necessary to protect the rights of the individual.
§ Mr. Alex Carlile
I wish to draw attention to amendments Nos. 58, 59, 67 and 74.
With regard to amendments Nos. 59 and 74, when the tribunal considers whether there has been a contravention, it should be able to examine the extent to which the safeguards in clause 6 have been observed. In the debate on 12 March, the Home Secretary gave an assurance that the tribunal woulddetermine whether the Secretary of State contravened the provisions of the Act". — [Official Report, 12 March 1985; Volume 75, c. 163.]That should include consideration of compliance with clause 6. My point is as simple and straightforward as that.
As for amendment No. 67, it seems extraordinary that the tribunal can tell the applicant only if a warrant has been excercised in breach of the rules, but if no warrant was issued for the interception the applicant cannot be informed of that breach. I hope that the Government will recognise that obvious lacuna and undertake to amend the Bill accordingly.
§ Mr. Mark Carlisle
Having listened to the hon. Member for Rother Valley (Mr. Barron), one has some sympathy with the person who believes that his telephone has been tapped when there is in fact no basis or justification for that claim. The hon. Gentleman's amendment, however, would allow to circumvent the effect of the tap on his affairs simply by making an inquiry. If there is no reply, he will know that his telephone has been tapped. Sadly, therefore, I do not believe tht it is possible for the tribunal to inquire into the situation described by the hon. Gentleman.
§ Mr. Waddington
The tribunal exists to provide a remedy in the case of wrongfully authorised interception. For the first time, it gives people a means of redress if the Secretary of State acts improperly in exercising his power to issue a warrant.
The question whether there has been unlawful interception, as distinct from improperly authorised interception, is a matter for the police and the prosecuting authorities. It is to them that people should go if they believe that there is evidence of an offence, and it is they who will investigate the allegation. It is wrong in principle for a quasi-judicial body such as the tribunal to trespass where others are responsible. The tribunal is not, and could not be, equipped to undertake the work of the police 1158 in establishing whether an unlawful interception has taken place. The tribunal is a specially constituted body of five qualified people competent to review the exercise of the Secretary of State's functions. There is a world of difference between carrying out such a review and carrying out an investigation into whether a crime has been committed.
If, while carrying out its review, the tribunal suspected an offence, it would be in the same position as any responsible person. Whether it should advise the applicant that he could approach the police if he believed that there had been an offence, or should inform the prosecuting authorities or the police direct, would be a matter for the tribunal to decide.
§ Mr. Alex Carlile
Does the hon. and learned Gentleman agree that, if it transpired during the tribunal's inquiries that no warrant whatsoever had been issued and that an unauthorised interception had taken place, that would be a serious breach of the law? Does he agree that the one person who certainly should be informed would be the victim of that unauthorised interception? It is all very well to talk about reporting the matter to the police, but if the Director of Public Prosecutions decided for some reason not to prosecute the person who had suffered would never be told that an interception had taken place. How can the hon. and learned Gentleman justify that?
§ Mr. Waddington
I do not say for a moment that the person concerned would never be told. It would indeed be an important matter if it came to the notice of the tribunal that there had been an unlawful interception. I said that the tribunal would act like any responsible person. It would be for the tribunal, as a responsible body, to decide whether in the circumstances it was right to inform the person direct or to inform the prosecuting authorities.
One need not tell a body such as the tribunal what it should do in such circumstances as might well arise. It would behave like any other responsible public body that might, during the course of its work, come across information suggesting that a criminal offence had been committed. It is obvious that only rarely would the tribunal know that there had been a criminal offence. If information came to its attention that tended to show that there might have been such an offence, it would behave like any other responsible public body.
§ Mr. Alex Carlile
In what circumstances would the tribunal be justified in not telling someone whose phone had been tapped without a warrant that that had occurred?
§ Mr. Waddington
The hon. and learned Gentleman is closing his mind to the function of the tribunal. It will not embark on some great investigation to find out whether there has been unlawful interception. It will be activated when someone tells it that he believes that the Secretary of State has not properly exercised his powers.
The hon. and learned Gentleman jumps to the conclusion that, having been activated in that way, the tribunal will come to the conclusion that a criminal offence has been committed. In that eventuality—which is not a very likely one — the tribunal would no doubt behave like a responsible body.
The tribunal is already required under amendment No. 67 to report to the Secretary of State, but I must remind the Committee that the Secretary of State is not concerned 1159 with the investigation of alleged criminal offences. He cannot interfere in the proper investigation of offences by the police, and if he received reports that it was suspected that an offence had been committed, there is little that he could do with them.
The amendments referred to by the hon. Member for Caithness and Sutherland (Mr. Maclennan) seek to extend the tribunal's remit to the clause 6 safeguards. But clause 6 deals not with the act of interception itself or with the execution of the warrant but with what happens after interception. At the heart of the clause lies not a series of decisions by a particular person but an administrative system containing arrangements that the Secretary of State has either made or inherited.
The tribunal has been created to provide a remedy where a decision has been wrongly taken under the legislation. It has the job of looking into a particular decision. But this would not be the case if there was an application under clause 6. I think that the amendments reflect a misunderstanding of the respective roles of the tribunal and the commissioner. The tribunal concerns itself with the individual decisions of the Secretary of State, and does so on receipt of an application from an individual who may have been affected. The commissioner, on the other hand, undertakes a continuing review on his own initiative, and that review must involve clause 6 arrangements. That seems to be the right way of going about these matters.
In those circumstances, I cannot recommend the amendments to the Committee.
§ Mr. Barron
I thought for a minute that the Minister would accept amendment No. 57. At one stage I thought that he saw nothing wrong with it. I cannot for the life of me understand why he should say that the tribunal is a responsible body that would obviously tell someone if he was the victim of a wrongful interception, yet not want to accept the amendment. Why is the amendment unacceptable? If the Minister is worried about the wording, he could return to the House with better drafting at a later stage.
The Minister's remarks were very contradictory, and I can do nothing other than ask hon. Members to vote for the amendment.
§ Question put, That the amendment be made:—
§ The Committee divided: Ayes 169, Noes 247.1162
|Division No. 179]||[10.15 pm|
|Adams, Allen (Paisley N)||Bruce, Malcolm|
|Alton, David||Buchan, Norman|
|Anderson, Donald||Caborn, Richard|
|Archer, Rt Hon Peter||Callaghan, Jim (Heyw'd & M)|
|Ashdown, Paddy||Campbell, Ian|
|Atkinson, N. (Tottenham)||Campbell-Savours, Dale|
|Bagier, Gordon A. T.||Canavan, Dennis|
|Banks, Tony (Newham NW)||Carlile, Alexander (Montg'y)|
|Barnet, Guy||Cartwright, John|
|Barron, Kevin||Clark, Dr David (S Shields)|
|Beckett, Mrs Margaret||Clarke, Thomas|
|Beith, A. J.||Clay, Robert|
|Benn, Tony||Clwyd, Mrs Ann|
|Bermingham, Gerald||Cocks, Rt Hon M. (Bristol S.)|
|Boothroyd, Miss Betty||Cohen, Harry|
|Boyes, Roland||Coleman, Donald|
|Bray, Dr Jeremy||Concannon, Rt Hon J. D.|
|Brown, Gordon (D'f'mline E)||Cook, Frank (Stockton North)|
|Brown, Hugh D. (Provan)||Cook, Robin F. (Livingston)|
|Brown, R. (N'c'tle-u-Tyne N)||Cowans, Harry|
|Brown, Ron (E'burgh, Leith)||Cox, Thomas (Tooting)|
|Craigen, J. M.||McNamara, Kevin|
|Crowther, Stan||McWilliam, John|
|Cunliffe, Lawrence||Madden, Max|
|Dalyell, Tam||Marek, Dr John|
|Davies, Rt Hon Denzil (L'lli)||Martin, Michael|
|Davies, Ronald (Caerphilly)||Mason, Rt Hon Roy|
|Davis, Terry (B'ham, H'ge H'l)||Maxton, John|
|Deakins, Eric||Maynard, Miss Joan|
|Dewar, Donald||Meadowcroft, Michael|
|Dixon, Donald||Michie, William|
|Dobson, Frank||Millan, Rt Hon Bruce|
|Dormand, Jack||Miller, Dr M. S. (E Kilbride)|
|Dubs, Alfred||Mitchell, Austin (G't Grimsby)|
|Dunwoody, Hon Mrs G.||Morris, Rt Hon J. (Aberavon)|
|Eadie, Alex||Nellist, David|
|Eastham, Ken||O'Brien, William|
|Evans, John (St. Helens N)||O'Neill, Martin|
|Ewing, Harry||Orme, Rt Hon Stanley|
|Fatchett, Derek||Park, George|
|Faulds, Andrew||Parris, Matthew|
|Field, Frank (Birkenhead)||Pike, Peter|
|Fields, T. (L'pool Broad Gn)||Powell, Raymond (Ogmore)|
|Fisher, Mark||Prescott, John|
|Flannery, Martin||Randall, Stuart|
|Foot, Rt Hon Michael||Redmond, M.|
|Foster, Derek||Rees, Rt Hon M. (Leeds S)|
|Foulkes, George||Richardson, Ms Jo|
|Fraser, J. (Norwood)||Roberts, Allan (Bootle)|
|Freeson, Rt Hon Reginald||Robertson, George|
|Garrett, W. E.||Rooker, J. W.|
|George, Bruce||Ross, Stephen (Isle of Wight)|
|Godman, Dr Norman||Rowlands, Ted|
|Gould, Bryan||Sedgemore, Brian|
|Gourlay, Harry||Sheerman, Barry|
|Hamilton, James (M'well N)||Shore, Rt Hon Peter|
|Hamilton, W. W. (Central Fife)||Short, Ms Clare (Ladywood)|
|Hardy, Peter||Short, Mrs R.(W'hampt'n NE)|
|Harrison, Rt Hon Walter||Silkin, Rt Hon J.|
|Haynes, Frank||Skinner, Dennis|
|Hogg, N. (C'nauld & Kilsyth)||Smith, C.(Isl'ton S & F'bury)|
|Home Robertson, John||Smith, Rt Hon J. (M'kl'ds E)|
|Howells, Geraint||Snape, Peter|
|Hoyle, Douglas||Soley, Clive|
|Hughes, Robert (Aberdeen N)||Spearing, Nigel|
|Hughes, Roy (Newport East)||Strang, Gavin|
|John, Brynmor||Thomas, Dafydd (Merioneth)|
|Jones, Barry (Alyn & Deeside)||Thompson, J. (Wansbeck)|
|Kaufman, Rt Hon Gerald||Thorne, Stan (Preston)|
|Kennedy, Charles||Tinn, James|
|Kilroy-Silk, Robert||Torney, Tom|
|Kirkwood, Archy||Wallace, James|
|Lambie, David||Wardell, Gareth (Gower)|
|Lamond, James||Wareing, Robert|
|Leadbitter, Ted||Weetch, Ken|
|Leighton, Ronald||Welsh, Michael|
|Lewis, Ron (Carlisle)||White, James|
|Lewis, Terence (Worsley)||Wigley, Dafydd|
|Litherland, Robert||Wilson, Gordon|
|Lloyd, Tony (Stretford)||Winnick, David|
|Loyden, Edward||Wrigglesworth, Ian|
|McCartney, Hugh||Young, David (Bolton SE)|
|McDonald, Dr Oonagh|
|McGuire, Michael||Tellers for the Ayes:|
|McKay, Allen (Penistone)||Mr. Sean Hughes and|
|Mackenzie, Rt Hon Gregor||Mr. Robin Corbett.|
|Adley, Robert||Banks, Robert (Harrogate)|
|Aitken, Jonathan||Batiste, Spencer|
|Alexander, Richard||Beaumont-Dark, Anthony|
|Amess, David||Bendall, Vivian|
|Ancram, Michael||Benyon, William|
|Arnold, Tom||Best, Keith|
|Ashby, David||Bevan, David Gilroy|
|Aspinwall, Jack||Blackburn, John|
|Atkins, Robert (South Ribble)||Blaker, Rt Hon Sir Peter|
|Baker, Rt Hon K. (Mole Vall'y)||Boscawen, Hon Robert|
|Baker, Nicholas (N Dorset)||Bottomley, Peter|
|Baldry, Tony||Bottomley, Mrs Virginia|
|Bowden, Gerald (Dulwich)||Heathcoat-Amory, David|
|Braine, Rt Hon Sir Bernard||Heddle, John|
|Brandon-Bravo, Martin||Hickmet, Richard|
|Bright, Graham||Hicks, Robert|
|Brinton, Tim||Higgins, Rt Hon Terence L.|
|Brittan, Rt Hon Leon||Holland, Sir Philip (Gedling)|
|Brown, M. (Brigg & Cl'thpes)||Hordern, Peter|
|Browne, John||Howarth, Alan (Stratf'd-on-A)|
|Bruinvels, Peter||Howarth, Gerald (Cannock)|
|Buck, Sir Antony||Hunter, Andrew|
|Burt, Alistair||Irving, Charles|
|Butcher, John||Jackson, Robert|
|Carlisle, Kenneth (Lincoln)||Johnson Smith, Sir Geoffrey|
|Carlisle, Rt Hon M. (W'ton S)||Kilfedder, James A.|
|Carttiss, Michael||King, Rt Hon Tom|
|Cash, William||Knight, Mrs Jill (Edgbaston)|
|Chapman, Sydney||Lang, Ian|
|Chope, Christopher||Lawrence, Ivan|
|Clark, Hon A. (Plym'th S'n)||Lennox-Boyd, Hon Mark|
|Clark, Dr Michael (Rochford)||Lester, Jim|
|Clark, Sir W. (Croydon S)||Lewis, Sir Kenneth (Stamf'd)|
|Clegg, Sir Walter||Lightbown, David|
|Cockeram, Eric||Lloyd, Ian (Havant)|
|Colvin, Michael||Lloyd, Peter, (Fareham)|
|Conway, Derek||Lord, Michael|
|Coombs, Simon||Lyell, Nicholas|
|Cope, John||McCrindle, Robert|
|Cormack, Patrick||McCurley, Mrs Anna|
|Couchman, James||Macfarlane, Neil|
|Cranborne, Viscount||MacKay, John (Argyll & Bute)|
|Currie, Mrs Edwina||Maclean, David John|
|Dickens, Geoffrey||McNair-Wilson, P. (New F'st)|
|Douglas-Hamilton, Lord J.||McQuarrie, Albert|
|Dover, Den||Major, John|
|Durant, Tony||Malins, Humfrey|
|Dykes, Hugh||Malone, Gerald|
|Edwards, Rt Hon N. (P'broke)||Marlow, Antony|
|Eggar, Tim||Mather, Carol|
|Emery, Sir Peter||Maude, Hon Francis|
|Eyre, Sir Reginald||Mawhinney, Dr Brian|
|Fairbairn, Nicholas||Maxwell-Hyslop, Robin|
|Fallon, Michael||Mayhew, Sir Patrick|
|Farr, Sir John||Merchant, Piers|
|Fenner, Mrs Peggy||Meyer, Sir Anthony|
|Forman, Nigel||Mills, Sir Peter (West Devon)|
|Forth, Eric||Miscampbell, Norman|
|Fowler, Rt Hon Norman||Mitchell, David (NW Hants)|
|Fox, Marcus||Moate, Roger|
|Freeman, Roger||Monro, Sir Hector|
|Gale, Roger||Montgomery, Sir Fergus|
|Gorst, John||Moore, John|
|Gower, Sir Raymond||Morrison, Hon C. (Devizes)|
|Grant, Sir Anthony||Morrison, Hon P. (Chester)|
|Gregory, Conal||Murphy, Christopher|
|Grist, Ian||Neale, Gerrard|
|Gummer, John Selwyn||Needham, Richard|
|Hamilton, Hon A. (Epsom)||Nelson, Anthony|
|Hannam, John||Newton, Tony|
|Hargreaves, Kenneth||Nicholls, Patrick|
|Harris, David||Normanton, Tom|
|Hayes, J.||Norris, Steven|
|Hayhoe, Barney||Onslow, Cranley|
|Hayward, Robert||Oppenheim, Phillip|
|Oppenheim, Rt Hon Mrs S.||Stokes, John|
|Osborn, Sir John||Stradling Thomas, J.|
|Ottaway, Richard||Sumberg, David|
|Page, Richard (Herts SW)||Taylor, John (Solihull)|
|Patten, Christopher (Bath)||Taylor, Teddy (S'end E)|
|Patten, J. (Oxf W & Abdgn)||Tebbit, Rt Hon Norman|
|Pattie, Geoffrey||Temple-Morris, Peter|
|Pollock, Alexander||Terlezki, Stefan|
|Porter, Barry||Thomas, Rt Hon Peter|
|Portillo, Michael||Thompson, Donald (Calder V)|
|Powell, William (Corby)||Thompson, Patrick (N'ich N)|
|Powley, John||Thornton, Malcolm|
|Prentice, Rt Hon Reg||Thurnham, Peter|
|Proctor, K. Harvey||Townend, John (Bridlington)|
|Raison, Rt Hon Timothy||Townsend, Cyril D. (B'heath)|
|Rathbone, Tim||Tracey, Richard|
|Rees, Rt Hon Peter (Dover)||Trippier, David|
|Rhodes James, Robert||Trotter, Neville|
|Ridley, Rt Hon Nicholas||van Straubenzee, Sir W.|
|Roberts, Wyn (Conwy)||Vaughan, Sir Gerard|
|Roe, Mrs Marion||Viggers, Peter|
|Rossi, Sir Hugh||Waddington, David|
|Rowe, Andrew||Wakeham, Rt Hon John|
|Rumbold, Mrs Angela||Waldegrave, Hon William|
|Ryder, Richard||Walden, George|
|Sackville, Hon Thomas||Walker, Bill (T'side N)|
|Sainsbury, Hon Timothy||Waller, Gary|
|St. John-Stevas, Rt Hon N.||Ward, John|
|Sayeed, Jonathan||Wardle, C. (Bexhill)|
|Scott, Nicholas||Warren, Kenneth|
|Shaw, Giles (Pudsey)||Watson, John|
|Shaw, Sir Michael (Scarb')||Watts, John|
|Shelton, William (Streatham)||Wells, Bowen (Hertford)|
|Shepherd, Colin (Hereford)||Wells, Sir John (Maidstone)|
|Shepherd, Richard (Aldridge)||Wheeler, John|
|Shersby, Michael||Whitfield, John|
|Silvester, Fred||Whitney, Raymond|
|Skeet, T. H. H.||Wiggin, Jerry|
|Smith, Tim (Beaconsfield)||Winterton, Mrs Ann|
|Soames, Hon Nicholas||Winterton, Nicholas|
|Speller, Tony||Wolfson, Mark|
|Spence, John||Wood, Timothy|
|Spencer, Derek||Woodcock, Michael|
|Spicer, Jim (W Dorset)||Yeo, Tim|
|Squire, Robin||Young, Sir George (Acton)|
|Steen, Anthony||Younger, Rt Hon George|
|Stevens, Lewis (Nuneaton)||Tellers for the Noes:|
|Stevens, Martin (Fulham)||Mr. Tristan Garel-Jones and|
|Stewart, Allan (Eastwood)||Mr. Michael Neubert.|
|Stewart, Andrew (Sherwood)|
§ Question accordingly negatived.
Amendment made: No. 60, in page 5, line 39, after 'Tribunal', insert
', applying the principles applicable on an application for judicial review,'.—[Mr. Brittan.]
§ To report progress and ask leave to sit again.—[Mr. Boscawen.]
§ Committee report progress; to sit again tomorrow.