HC Deb 02 April 1985 vol 76 cc1156-62
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.'.

The Chairman

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—

  1. (a) give notice to the applicant stating that conclusion; and
  2. (b) make a report to the Secretary of State.'.
No. 72, in page 6, line 17, after 'been', insert 'no interception and'.

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 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 would determine 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 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?

10.15 pm
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 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.

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.
Maclennan, Robert
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
Stern, Michael
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.

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