Interception of Communications (Hansard, 7 February 1985)

§ The Secretary of State for the Home Department (Mr. Leon Brittan)
With permission, Mr. Speaker, I should like to make a statement on the interception of communications on which the Government have undertaken to introduce legislation in this Session.
I am today presenting a White Paper on the interception of communications in the United Kingdom. Copies are available in the Vote Office. The White Paper sets out the present position on interception authorised by all the Secretaries of State concerned. It outlines the main features of the Bill which the Government will introduce next week in fulfilment of their undertaking, and it describes how effect will be given to the legislation. It supplements the White Paper published in 1980 and gives the figures for the number of warrants issued by the Home Secretary, the Secretary of State for Scotland and the Secretary of State for Foreign and Commonwealth Affairs in recent years.
I should stress at the outset that the Government are not through the proposed legislation in any way either seeking or permitting the extension of the present scope of interception. The Bill will, however, establish a comprehensive statutory framework for the interception of communications, which are defined for these purposes as all forms of telecommunications in the public networks and also the post. It will incorporate into the law the existing stringent controls and limitations. It will define the grounds on which a Secretary of State will be empowered to authorise interception. These are in line with existing practice and are narrower than those specified in the European convention. They will be national security, the prevention and detection of serious crime, and the safeguarding of the economic well-being of the United Kingdom. In the latter case interception will be permissible only when it is for the purpose of obtaining information about events outside the country. Unauthorised interception will be made a criminal offence.
The legislation will also greatly increase the existing safeguards, not only by creating the new criminal offence, but also by providing a means of redress for those wishing to complain that interception has been improperly authorised. An independent tribunal will be established to adjudicate on complaints. It will be able to get at all the facts, and if it concludes that the issue of a warrant does not come within the statutory criteria it will be able to quash the warrant and award compensation. The post of the existing monitor of interception arrangements will be replaced by a statutory commissioner. He will be given the task of keeping under continuing review the exercise of the Secretary of State's powers and all the arrangements to do with the issue and execution of warrants. The Bill will lay down requirements to secure the proper handling of intercepted material.
Communications of the kind covered by the Bill merit special protection because they are committed by somebody into the custody of a carrier over whom he has no control. Legislation to deal with other aspects of privacy, such as surveillance, gives rise to quite different and so far unresolved issues.
Parliament will shortly have the opportunity to consider the provisions of the proposed Bill in detail, though hon. 1118 Members will appreciate the constraints which must inevitably apply to what can be said about some aspects of these matters. The interception of communications is always distasteful but sometimes essential if serious crime is to be thwarted, terrorism effectively combated and our national security adequately safeguarded. But it is right that the extent of interception should be strictly limited and a means of redress provided where it has wrongfully taken place.
I commend the Government's proposals to the House. I believe that they strike the right balance and that they will ensure that that balance is effectively maintained.

§ Mr. Gerald Kaufman (Manchester, Gorton)
I thank the Home Secretary for letting me see an advance copy of the White Paper published today. In view of the issues involved, I suggest that when the legislation comes before Parliament the use of the Special Standing Committee procedure should be considered.
I pay tribute to Mr. James Malone, without whose court action and application to the European Court of Human Rights the Government would not have felt obliged to introduce the legislation foreshadowed in the Home Secretary's statement.
The White Paper refers to the backstop safeguard to be built into the Bill in the form of the tribunal. Who will appoint that tribunal, and how will its essential independence be safeguarded?
I suggest that the Government's proposals should be judged in accordance with the statement of Mr. Justice Megarry in the Malone case. He said that telephone tapping is a subject which cries out for legislation … in any civilised system of law the claims of liberty and justice would require that telephone users should have effective and independent safeguards against possible abuses. In the light of those words, the Government's proposals arouse some profound misgivings rather than allaying them. As the White Paper makes clear, telephonic interception is carried out by British Telecommunications and any other public telecommunications operators licensed under the Telecommunications Act 1984". Any form of surveillance gives rise to anxiety, but there has been a change since the 1980 White Paper. BT is no longer a public corporation, and under the legislation privately owned licensed operators will be able to tap telephones. We have the gravest misgivings about authorising private agencies to intercept the communictions of private citizens or democratic organisations.
The White Paper also does not cover providing access to the results of telephone metering. Yet the European Court in its judgment six months ago specifically said: Metering amounts to interference with the exercise of a right guaranteed by Article 8 of the convention. How does the Home Secretary intend to deal with that aspect?
Above all, we are extremely worried by paragraphs 21 and 22 of the White Paper. Referring to the issue of warrants in support of the Government's defence and foreign policies", paragraph 21 uses phraseology not previously used in any White Paper or public document on this matter. The incorporation of such a provision into legislation would open the way to surveillance for almost any purpose. For instance, it could be used in connection with the grotesque and ominous operation at Molesworth, in which the Secretary of State for Defence has been disporting himself as a bargain basement version of John Wayne.

§ Mr. Dennis Skinner (Bolsover)
He bought himself out of the Army for that.

§ Mr. Kaufman
He has the funds.
Paragraph 22 also arouses great concern. It states: The legislation will empower the Secretary of State to issue warrants where they are necessary for safeguarding the economic well-being of the United Kingdom, but only if they are for the purpose of acquiring information about matters outside the country. It is an important part of the Government's foreign policy to protect the country insofar as it can from adverse developments overseas affecting the well-being of the economy. Foreign intelligence which may be necessary in support of the Govermnent's foreign policy will on occasions include foreign intelligence which is necessary for the protection of the economic well-being of the country. I appreciate that the phrase "economic well-being" is covered by the European convention, but how far will that be expanded in the legislation and in the exercise of the powers? Will it be used, for example, for the surveillance of communications by currency dealers as the level of the pound is a matter of economic well-being? Will it be used for the surveillance of international trade union links in connection with, say, the miners' strike? It could be used for partisan political purposes disguised as the national interest.
What the legislation contains and omits is fundamental to civil liberties and human rights. We shall scrutinise the legislation minutely to ensure that it does not open the door to the expansion of Big Brother State.

§ Mr. Brittan
On the last point, far from expanding Big Brother State, the legislation will for the first time put on a statutory footing the exercise of a power which has very properly been exercised by Governments of all political complexions for many years. The addition is not a broadening of the exercise of power but the provision of safeguards—effective safeguards, in my view—which did not previously exist. It is therefore in a spirit of readiness to have the legislation measured against the kind of test described by Mr. Justice Megarry that I present the Government's proposals to the House.
I am not sure that this legislation is best suited to the Special Standing Committee treatment, but I shall discuss the matter with my right hon. Friend the Leader of the House. My only comment on the Malone case is that the Government were committed to legislate in this area before the European Court made its judgment. The case for legislation did not arise merely as a result of the litigation before that court.
The Bill will provide that the tribunal should be appointed in the same way as the Ombudsman. The Crown, on the advice of the Prime Minister, will make the appointment by letters patent. Members of the tribunal will be distinguished legally qualified people chosen because they will command the confidence of both the House and the country.
British Telecom will be merely the agent of the interception ordered by the Secretary of State. The operations of British Telecom will be controlled and regulated by law in a very firm way. I do not believe that the change in commercial status will make any difference to that regulation.
I draw the attention of the right hon. Member for Manchester, Gorton (Mr. Kaufman) and the House to paragraph 17 of the White Paper, which deals with access to metering in a reasonable way.
The right hon. Gentleman expressed anxiety that paragraph 21 would permit surveillance for any purposes.
1120 He made an number of hypothetical suggestions. I do not think that he is right. The requirement of national security, for example, has appeared in no fewer than 50 different statutes without definition and has been regarded as acceptable by Governments of both political parties. Several of the statutes were introduced by Labour Governments.
The right hon. Gentleman referred to the criterion of safeguarding the economic well-being of the country and asked how much that would be expanded in the Bill. The answer is that it will not be expanded at all. That will be the criterion. What is more, the Secretary of State will have to judge that information relating to events and information overseas must necessarily be intercepted for the purpose of the economic well-being of the country. There will be further protection. If it is felt that interception has taken place that is not necessary for that purpose, the tribunal will have full power to look at the facts, quash the interception and award damages.

§ Sir Edward Gardner (Fylde)
Can my right hon. and learned Friend confirm that any legislation restricting the use of telephone tapping will apply to the police special branch? Further, is he satisfied that the operations of the special branch are effectively co-ordinated and properly controlled?

§ Mr. Brittan
Yes, I can confirm that the special branches will be subject to the legislation. They operate under the guidelines that I issued last December. Under the previous guidelines, the terms of reference of the special branch were not made public. The Government decided to make the guidelines public, and also decided that they should involve a considerable tidying up of the operations of the special branch in that area.

§ Dr. David Owen (Plymouth, Devonport)
As someone who has had to authorise interceptions, I welcome the introduction of this legislative framework. It is long overdue that administrative discretion should in some way be checked and safeguarded.
I am concerned about the appointment of the independent tribunal. The tribunal is the most crucial safeguard in the legislation. The tribunal is unlike an ombudsman, in that it will in effect investigate the judgment of the Secretary of State. There is a strong case for saying that the House should authorise the appointment of the members of the tribunal. At the very least, there should be a mechanism for consultation among the parties so that the appointments are not seen as an aspect of Government patronage when it is the Government themselves and their decisions that are to be scrutinised. These important appointments should be made objectively.

§ Mr. Brittan
I am glad that the right hon. Gentleman, with his experience of such matters, welcomes the proposed legislation.
I shall, of course, consider what the right hon. Gentleman said about the tribunal, but I do not think that in practice that aspect of the matter will cause any great difficulty. We are talking about the appointment of a body which will essentially exercise judicial functions, deciding whether or not an interception which has been authorised falls within the statute.
The courts of this country scrutinise the operations of the Government and, as Ministers of all Governments have 1121 found, do not hesitate to strike them down, although the appointments are made in the normal way. It will not be difficult to find a way of appointing people who will command general confidence. There would be no point in any appointments which did not have that effect.

§ Mr. John Wheeler (Westminster, North)
I congratulate my right hon. and learned Friend on introducing proposals that are important from the point of view of civil liberties. However, can he confirm that the important decisions to be made in connection with these issues will be made by him personally and not by officials?

§ Mr. Brittan
I can give my hon. Friend that confirmation. That has always been the case, and will continue to be the case. I scrutinise each application made to me to make sure that it meets the relevant criteria. The procedure is the same for the Secretaries of State for Scotland, Northern Ireland and Foreign and Commonwealth Affairs. Such applications are prepared at a high level and scrutinised personally by the relevant Secretary of State—not even by any other Minister in the Department.

Mr. Bruce Millian (Glasgow, Govan)
I welcome the Government's intention to put the whole business on a statutory basis. However, the criterion of the economic well-being of the country is new. It has not been necessary before. Why is it necessary now?
Secondly, someone who may have legitimate cause for complaint may not be aware that his telephone is being tapped, so the case will never come before the tribunal. Is the tribunal to investigate only authorised interception, or will it be able to inquire into possible unauthorised interceptions by, for example, the police or the security services? It is in that area that many of us feel the greatest disquiet. There is a feeling that a good deal of unauthorised interception takes place, regardless of the authority of any Secretary of State.

§ Mr. Brittan
The economic criteria have not been publicly stated in this way before, but they are not new. Right hon. Members on both sides of the House who have exercised such responsibilities will be aware of that and will be able to confirm that that is true. Such power has not been exercised by the Secretary of State for Scotland but, as the White Paper makes clear, the power has been exercised by the Secretary of State for Foreign and Commonwealth Affairs. The Bill will not extend in any way the area in which those powers are exercised.
It may well be that someone will not know whether or not his telephone calls, for example, have been intercepted. It has been the practice of Governments of both political parties never to confirm or deny whether an individual interception has taken place. Whichever answer was given, the consequences would be obvious to people who might be involved in drug trafficking or terrorism. That would be very dangerous. Anyone who has suspicions will be able to refer them to the tribunal, which will have access to the relevant information and will be able to establish whether there had been interception—authorised or not—and whether, if the interception was authorised, that authorisation was properly given.

§ Sir Paul Bryan (Boothferry)
I congratulate my right hon. and learned Friend on a commonsense approach to 1122 a sensitive problem. To what extent will the provisions of his statement affect the strict guidelines already issued to the police on the issue of surveillance equipment? Does not telephone tapping frequently play an effective part in the detection of criminals?

§ Mr. Brittan
It does indeed. The legislation and the proposed scheme fit in entirely with the tightened-up guidelines on surveillance. The guidelines on the use of equipment in police surveillance operations were issued on 19 December 1984, and a copy was placed in the Library of the House. The guidelines laid down detailed criteria and procedures for the authorisation of the use of surveillance devices. Further, the guidelines are especially designed to ensure that police surveillance is not used as a back-door method of securing interception of telephone communications without a warrant from the Home Secretary.

§ Mr. A. J. Beith (Berwick-upon-Tweed)
Does the Home Secretary agree that the citizens of Britain ought to have more confidence than they now have, or can now have, that their communications will not be intercepted unless their activities, on overwhelming evidence, represent a great threat to their fellow citizens? Ought not the ultimate determination of what constitutes such a threat lie in the hands of other than those of politicians? Is the Home Secretary satisfied that, within the Bill and existing provisions, there is sufficient safeguard against the interception of communications by other countries operating in the United Kingdom?

§ Mr. Brittan
Safeguards against improper interceptions which are not in any way authorised by any agency of the Government cannot be guaranteed by legislation. That might be a matter of concern, but any interception that takes place outside the authorisation procedures of this legislation will, from now, be a criminal offence. That is new. Until now, a criminal offence has been committed only, for example, if it has been done improperly by British Telecom employees. There has not been a general criminal offence of unauthorised interception. This is a major step forward in the interests of protecting citizens.
I fear that politicians have to act in these matters, but those who have exercised such a responsibility agree that there is no exercise of ministerial responsibility which is looked into with greater care, and which is exercised in a less partisan way. This legislation provides, for the first time, an opportunity for an independent tribunal to express its view on whether the interception has been proper, and to quash the interception and award damages if something has gone wrong.

§ Mr. John Gorst (Hendon, North)
Does my right hon. and learned Friend recall that, on April Fool's Day 1981, his predecessor, Lord Whitelaw, as he now is, told me before I voted against the Government on this matter that statutory provisions would be unworkable? His reason was that interception must be secret and that the judicial process must be open. On those grounds he rejected the amendment which I and a couple of my hon. Friends tabled to achieve what my right hon. and learned Friend has now advanced. What has changed since then to make statutory provisions workable? Will it now be possible for an individual to take the Home Secretary, or the relevant Secretary of State, to the tribunal to discover whether his telephone is being tapped?

§ Mr. Brittan
An individual will be able to complain to the tribunal if he thinks that his telephone calls have been improperly intercepted and the tribunal will tell him whether the telephone calls have been intercepted improperly. It is important that individuals should not be told whether their telephone calls have been intercepted. Indeed, there are many circumstances in which it would be quite wrong for them to be told. The tribunal will consider whether there has been interception, whether it has been authorised and whether the authorisation was proper. If there has been improper interception, that will be made clear, compensation can be given, and the order can be quashed. If there has been authorised interception, the tribunal will merely say that there has been no breach of the Act.
As to what my hon. Friend said about my right hon. and noble Friend the Lord President of the Council in 1981, producing a legislative framework has not been easy. The difficulties to which my right hon. and noble Friend referred were real and should not be underestimated. I hope that, now that my hon. Friend has got the legislation that he sought, he might look forward rather than backwards, when the difficulties seemed greater.

§ Mr. Harry Ewing (Falkirk, East)
The statistics concerning annexe 2 are explicit but, to complete the picture and to advise the House and the country how widespread the practice is, could the Home Secretary give the number of applications for warrants which were made and refused, rather than those which were made and granted? If he does not have those figures to hand, will he make them available? Has he refused to grant any applications for a warrant?

§ Mr. Brittan
I do not have the figures to which the hon. Gentleman asks, but I do not think that producing them will be quite as easy or helpful as the hon. Gentleman suggests. I shall explain why. The process is not a straightforward one by which the agency says, "Here is an application. Yes or no?" Unless there is urgency, there is much interchange between the agency and those who advise the relevant Secretary of State. An application might not be made formally if it is made clear that it is unlikely to be granted.

§ Mr. Michael Mates (Hampshire, East)
I warmly welcome my right hon. and learned Friend's proposals. Will he remind the House of the crucial importance of proper interception of communications in the battle against terrorism? Will he take this opportunity to confirm that any part of the legislation that he produces will not make that difficult job even more difficult?

§ Mr. Brittan
I am grateful to my hon. Friend for his comments. He is right in saying that the role of interception in the battle against terrorism is extremely important. The Government's proposals provide a framework in which the carefully controlled use of intercept can continue to play an important part in combating terrorism. I assure my hon. Friend that the safeguards and advances that I have described will not prevent the proper use of this weapon, where necessary, against that evil threat to our society.

§ Mr. John McWilliam (Blaydon)
Is the Home Secretary aware that the Post Office Engineering Union, which sponsors me, welcomes his intention to legislate on this matter? Indeed, it has been calling for such legislation 1124 for more than five years. Is he further aware that his answer to my hon. Friend the Member for Falkirk, East (Mr. Ewing) about refusal to grant interception warrants makes me more worried about this legislation than I was when I came into the Chamber? Is he also aware that his saying that an application would not come forward when it would not be granted can only confirm what right hon. and hon. Members have been saying for years—that the interception is done in any case? The legislation does not cover that. Is the Home Secretary further aware that what he suggests in paragraph 21 of the White Paper would have made the Watergate affair legal if it had happened in Britain? We cannot tolerate that for long. He could have avoided all of this by accepting the amendment in which the hon. Member for Hendon, North (Mr. Gorst) and I had a hand in 1981.

§ Mr. Brittan
I do not accept the hon. Gentleman's latter point. As to his first one, there has been a genuine misunderstanding. I said not that the application would not come forward because the interception is made anyway, but that the application would not come forward because, in the circumstances to which the hon. Gentleman referred, it would clearly be refused.

§ Mr. Teddy Taylor (Southend, East)
I welcome my right hon. and learned Friend's proposals. Can he reassure people who might question the need for interception in any circumstances by outlining some of the achievements and progress in the battle against crime and drug abuse, for example, as a result of the controlled use of telephone interception?

§ Mr. Brittan
It is difficult to do that without quoting individual examples. However, the police in England and Wales estimate that, in the past 10 years, they have been able to make more than 5,000 arrests, to recover about £40 million-worth of stolen property and to seize drugs valued in excess of £50 million as a result of interception.

§ Mr. Dafydd Wigley (Caernarfon)
I welcome the move towards legislation, but will the Home Secretary say whether in the matter of surveillance, for which guidelines were issued before Christmas, the Government intend to move towards a legislative framework? Is he aware of the misgivings about paragraph 21, which effectively says that the Secretary of State may issue warrants in support of the Government's defence and foreign policies? Is that not a licence to tap the telephone of any member of Campaign for Nuclear Disarmament?

§ Mr. Brittan
The answer to the hon. Gentleman's first point is that the legislation deals with interception, not with surveillance. I hope the hon. Gentleman will feel that the guidelines published in December, which amount to a considerable tightening-up of the previous arrangements, show that we recognise the concern about surveillance, and are prepared to take action to the extent that that is possible. It would be wrong to hold out any prospect of legislation in that area.
With regard to CND, the hon. Gentleman was present in the House when on another occasion I said that there was no question of special branch interception or interest in any organisation which campaigns in a legitimate way for legitimate political objectives however contrary they may be to the interests and policies of the Government.

§ Mr. Michael Howard (Folkestone and Hythe)
I welcome my right hon. and learned Friend's announcement, but can he clarify the nature of the European Court's ruling? Was objection taken to the current practice or to the manner in which the power has been exercised, or was it simply to the absence of a statutory basis for the power?

§ Mr. Brittan
My hon. and learned Friend raises an important point. The European Court made no criticism of the procedures by which interception is authorised, nor did it comment on the merits of the use of interception in the case before it. Its only criticism was that the law in the United Kingdom did not spell out sufficiently clearly the scope of the power to authorise interception or the criteria for its exercise. Our proposal will meet that criticism and go further by reinforcing the safeguards against abuse and by providing a remedy for the individual.

§ Mr. Jeremy Corbyn (Islington, North)
May we take the Home Secretary's statement as a retrospective apology to the House, because he and his immediate predecessor have stood at the Dispatch Box and told the House that nothing is wrong with the way in which telephone tapping is carried out? As he will legislate on the matter, will he tell the House whether complainants will have a right to be legally represented at the proposed tribunal?

§ Mr. Brittan
There is no question of apologising, because there is nothing for which to apologise. As I have said, the area covered is the same as that which has existed until now. Nothing improper was done in past practice. This legislation provides for a statutory framework within which to operate, and extra safeguards for citizens. Therefore, I feel no need to apologise for myself or my predecessors, on either side of the House. We may consider legal representation when we deal with the Bill.

§ Mr. Geoffrey Dickens (Littleborough and Saddleworth)
Is my right hon. and learned Friend aware that former Home Secretaries have told the House that they signed between 200 and 300 applications for warrants to tap telephones each year, yet it is common knowledge throughout the United Kingdom that we have specialised units capable of tapping thousands of telephone calls every day? I welcome the legislation, but will my right hon. and learned Friend give an undertaking today that, because of public anxiety about people having their telephones tapped, we shall be as flexible as possible with the 1126 legislation in Committee and will not make it a matter of political dogma, and that between us we shall try to get the legislation right for the sake of the British people?

§ Mr. Brittan
My hon. Friend is right to express the anxieties that undoubtedly exist about what I described in my statement as a disagreeable practice. I assure him that the figures set out in the White Paper are accurate. We shall debate the Bill fully and, I hope, in the spirit that has been shown in our exchanges so far this afternoon.

§ Mr. Skinner
Will the Home Secretary give a categorical assurance from the Dispatch Box that none of the trade union leaders involved in the miners' strike have had their phones tapped during the past 11 months?

§ Mr. Brittan
The hon. Gentleman will know why it is impossible to give such an assurance. As I said in answer to a previous question, it is never the practice in the case of individuals either to confirm or deny whether interception has taken place.

§ Mr. Derek Spencer (Leicester, South)
Will my right hon. and learned Friend confirm that during the Malone case the European Court accepted that the present procedures were effective in keeping the number of warrants at a low level, notwithstanding the increased use of the telephone and the increase in the level of serious crimes?

§ Mr. Brittan
My hon. and learned Friend is right. The figures published in the White Paper must be taken in the context of a massive increase in the use of the telephone. It is fair to consider them in that context. If they are considered in that way, they show a greater degree of restraint than if the absolute numbers are considered cold.

§ Mr. Peter Bruinvels (Leicester, East)
Is my right hon. and learned Friend aware of the anxiety felt at the time of the European Court's judgment on James Malone? Conservative Members greatly supported the independence of the Home Secretary that day. Will he therefore confirm now that his powers will in no way be hampered to secure and ensure the protection of this country in the interests of national security?

§ Mr. Brittan
I believe that the framework that I am announcing will enable me, and my other right hon. and hon. Friends who exercise these powers, to do what my hon. Friend wants. At the same time, it will provide a satisfactory statutory framework and enhance protection for individuals.