§ Order for Second Reading read.3.43 pm
The Secretary of State for the Home Department (Mr. Leon Britain)
I beg to move, That the Bill be now read a Second time.
On 7 February I made a statement on the publication of the White Paper setting out the Government's legislative proposals on the interception of communications in the United Kingdom. This Bill gives effect to those proposals. It is neither the purpose nor the effect of the Bill to broaden the scope of present practices governing the use of interception. Those practices have been authorised by successive Governments of both parties.
This Government neither seek nor want any additional powers whatsoever, but there is one important difference between this Government and their predecessors. It is that we are providing, for the first time, a clear and comprehensive statutory framework for the interception of communications. Even more important, we are creating, for the first time, a new criminal offence of unauthorised interception. Most important of all, we are providing, for the first time, a means of redress, and an effective one, for those wishing to complain that interception has been improperly authorised. Former Labour Ministers may protest raucously about the width of the criteria for interception, but their protests are sheer hypocrisy because their Government operated precisely the same criteria but did not dream of introducing any of the protections contained in the Bill.
Governments of varying political complexions have accepted that in defined and carefully controlled circumstances it is right and necessary to intercept communications. The ability to communicate effectively and quickly is essential to the criminal, the terrorist and the spy. The ability to intercept such communications is a legitimate and essential tool in the hands of those whose job it is to defend our society and protect our liberties. How else, for example, would the police or Customs and Excise be able to piece together information on someone operating a drugs syndicate, who takes care not to travel around to meet his contacts and does not allow them to see him? It cannot be right that such a person should be free to use the telephone in the certain knowledge that in that way he can operate without any fear that his dealings will be found out. Nor can it be right that terrorists or spies who strike at the heart of our democracy should be able to operate in that way.
The issue before the House today, therefore, is not whether the use of interception is necessary and legitimate; it is how the use of interception should be limited, regulated and controlled. As I said on 7 February, interception of communications is always highly distasteful; it is a major intrusion of privacy. Interception has, therefore, always been the subject of very stringent controls. Successive Secretaries of State, both Labour and Conservative, have set themselves the highest standards in 152 operating the present arrangements and have established clear limitations on the circumstances in which the existing powers have been used.
This debate takes place against the background of a number of allegations in the film "MI5's Official Secrets". The allegations fall centrally into four categories—first, that interception has been authorised in circumstances that do not warrant it; secondly, that an unauthorised interception has been carried out; thirdly, that the security service has operated improperly in carrying out investigation and surveillance other than interception in relation to subversive activity; fourthly, that criminal offences may have been committed.
The first allegation covers a period during which both Labour and Conservative Governments were in power. Opposition Members must not be allowed to forget that the bulk of interceptions relate to the period before 1979. Since 1980, there has been an independent monitor of interception arrangements. That safeguard was brought into the system by the present Government. The task of the monitor—currently the distinguished Law Lord, Lord Bridge of Harwich—has been to review on a continuing basis the exercise of the powers of interception covered by the previous White Paper and the associated procedures.
As the House knows, my right hon. Friend the Prime Minister, with the agreement of former Prime Ministers and other Ministers concerned, asked Lord Bridge to take on the extra and particular task of determining whether the authorisation of interceptions over the whole period covered by the recent allegations named the individuals in question and, if so, whether the authorisations were sought and given in accordance with the procedures and criteria laid down in the Birkett report of 1957 and the Command Paper of April 1980. As hon. Members will know, Lord Bridge has now reported, and in accordance with—
§ Sir Edward Gardner (Fylde)
Is my right hon. and learned Friend aware of and has he read the letter in The Times today from the right hon. Member for Glasgow, Hillhead (Mr. Jenkins)? I do not see him in his place. Does my right hon. and learned Friend agree that in this letter the most extraordinary and personal attack has been made by the right hon. Gentleman upon Lord Bridge? Does he not also agree that, in accepting the Government's instructions to make an urgent investigation into interceptions, Lord Bridge has acted with unimpeachable judicial propriety?
§ Mr. Brittan
I entirely agree with my hon. and learned Friend. The attack made on Lord Bridge by the right hon. Member for Glasgow, Hillhead (Mr. Jenkins) was wholly unwarranted. In his letter the right hon. Gentleman totally ignores the fact that Lord Bridge is the judicial monitor. As such, he has knowledge of and access to all aspects of interception. In relation to interception allegations it is therefore wholly natural and appropriate that Lord Bridge should be asked to conduct an inquiry. The allegations—
§ Mr. Brittan
I am answering a question. If the hon. Gentleman will contain himself, I shall give way to him, too.
In relation to interception allegations, it is wholly natural that the judicial monitor should be asked to conduct a special inquiry. The allegations in the film were of a 153 limited number and the inquiry was therefore of a narrow compass. The inquiry into that matter was far closer to a judicial investigation than many of the things that judges are customarily asked to do by Governments of both parties. Therefore, I do not find it in any way surprising that Lord Bridge should have come to an early conclusion, which he reported to the Prime Minister. I regard it as deplorable that somebody with the experience of the right hon. Member for Hillhead should make a wholly unjustified attack upon Lord Bridge.
§ Mr. Robert Maclennan (Caithness and Sutherland)
Does not the Home Secretary recognise that the burden of the attack is upon himself for having appointed as an investigator the very man whose work had to be investigated and that, as it was put in the Daily Telegraph, it was like setting Cerberus to investigate hell?
§ Mr. Brittan
The hon. Gentleman has completely misrepresented what was said by the right hon. Member for Hillhead. If he cares to look at the letter, he will see that there is an attack on Lord Bridge. If the hon. Gentleman wants to make a different point, he is entitled to make it. I would only say to him that it is equally misconceived because there is absolutely nothing surprising in the fact that Lord Bridge, who has experience of these matters as judicial monitor, should be invited to look back to the period when he was not judicial monitor, to consider the material that was put before successive Secretaries of State in support of applications for interception warrants and to consider whether they were well founded. That is what Lord Bridge did.
§ Mr. Brittan
If I may make a little progress, I shall then happily give way to more hon. Gentlemen.
§ Mr. Tam Dalyell (Linlithgow)
The Home Secretary has referred constantly to successive Secretaries of State and to previous Governments. May I ask him a factual question about which I have no clue as to the answer. I understood that legislation like this was always agreed on Privy Council terms and that there were discussions between the parties on Privy Council terms. Did that happen in the case of this legislation?
§ Mr. Brittan
If the hon. Gentleman is referring to matters that are dealt with on Privy Council terms, I believe that he would be best advised to address his question to his own Front Bench.
As hon. Members will know, Lord Bridge has now reported and, in accordance with my right hon. Friend's undertaking, his findings have been made public, in so far as that can be done in a manner consistent with national security. His review covered the period back to 1970. As he says in his report, he had regard to all the relevant criterial and had access to all the documents which he felt could be of any assistance to him. He concluded that he was satisfied, after full examination of all relevant documents, that no warrant for interception had been issued in contravention of the appropriate criteria.
In view of some of the things that have been said since about the narrowness of Lord Bridge's remit, I should make it clear that Lord Bridge's task was not confined to establishing that the necessary formalities had been complied with in respect of any warrant that was issued. He had to consider the merits of any application in order to satisfy himself that it could properly be regarded as 154 coming within the established criteria for permitting interception. In other words, if the basis of an application were subversion, Lord Bridge's task included satisfying himself that interception could be justified on that ground.
Lord Bridge was not concerned with allegations that interception had taken place without the authorisation of the Secretary of State—
§ Mr. Brittan
If the hon. Gentleman will allow me, I shall develop that point and then give way.
Lord Bridge was not concerned with allegations that interception had taken place without the authorisation of the Secretary of State, or with allegations in respect of activities of the security service other than interception. Such allegations relate to the operation of the security service as a whole.
The security service's task and procedures are governed by what is known as the Maxwell Fyfe directive, which requires the director general totake special care to see that the work of the Security Service is strictly limited to what is necessary for the purposes of this task".It is an important part of the duty of my right hon. Friend the Prime Minister and myself to satisfy ourselves that the security service operates entirely within the letter and spirit of its directive. That is a responsibility which has always been taken extremely seriously. It is part of the continuing duty of any Home Secretary. But since these allegations came to the fore I have taken steps to examine the allegations that the security service has operated improperly in carrying out investigations and surveillance in relation to subversive activity.
I have concluded, in the light of the allegations and my inquiries into them, that the security service has carried out no operation, investigation, surveillance or action against any individual otherwise than for the purposes laid clown in its directive and with the propriety which successive Governments have rightly demanded of it, and which this Government will continue to demand.
§ Mr. Austin Mitchell
The right hon. and learned Gentleman seems to avoid the point of the earlier question, which is that surely he is responsible for the inadequacies of Lord Bridge's report if he did not specify that there should be an investigation into whether there were unauthorised taps by the security service. Is he now telling us in this further amplification that there were no unauthorised taps in defiance of the Maxwell Fyfe directive?
§ Mr. Brittan
I was right to be reluctant to give way to the hon. Gentleman because I am coming to that point. He will recall that I specified four criticisms that were made in the film and I am dealing with them in order. If he will allow me, I shall come to that precise point.
The hon. Gentleman will recall that Lord Bridge dealt with the question of authorised interception and whether it should have been authorised. I am now dealing with the question of surveillance, investigation operations, and so on, other than interception. I have expressed my conclusion after specifically looking into the allegations.
In regard to allegations about unauthorised interception—
§ Mr. Brittan
No, I shall not give way.
There were no allegations of unauthorised interception in the "MI5's Official Secrets" film. None the less, I have 155 inquired into that, too, and I can inform the House that I am satisfied that members of the security service did not carry out any interceptions without the authority of the Secretary of State.
Finally, it is important that I should deal with—
§ Mr. Brittan
I shall give way in a moment.
It is important that I should deal with all four of the allegations in the film. The Director of Public Prosecutions has asked the Metropolitan police to look into the allegations in the film which suggest that criminal offences may have been committed. When the police have completed their inquiries, they will of course report to the director.
§ Mr. Winnick
Our difficulty is that the Home Secretary says, in effect, that what has been done has been duly authorised. Perhaps I can refer him to the answer that he gave me yesterday regarding the newspaper report that a former editor of a CND journal had been interviewed by the special branch about the private lives of leading CND officials and the leadership style of the general-secretary of CND. Yesterday the right hon. and learned Gentleman said:I am assured by the commissioner that no inquiries have been initiated by the Metropolitan police special branch outside the terms of those guidelines."—[Official Report, 11 March 1985; Vol. 75, c. 28.]I accept that, but it does not deal with the question. If such investigations and questioning took place, thereby infringing the civil liberties of those undoubtedly engaged in perfectly lawful activities, how does the Home Secretary's reply to me take the matter any further?
§ Mr. Brittan
The hon. Gentleman will know perfectly well that it is not the practice, and has not been of successive Governments, to comment on specific allegations. If those sitting behind him think that that is a very clever or surprising admission, they should look at what the then Under-Secretary of State for the Home Department said, very carefully, in a debate on 28 July 1977 on these very matters. The position is perfectly clear. In relation to the operations of the security service—other than interceptions, which I have already dealt with — the responsibility is that of the Home Secretary. I have given the House a clear statement of the conclusions that I have reached on that point.
What I cannot and will not do is to comment on individual allegations, any more than the Labour Government did. But let me reiterate what I have said on a number of occasions, because I hope that it will be found helpful. No member of CND, no members of a trade union — nor for that matter any individual—need fear that he is the object of surveillance by the security authorities unless his own actions and intentions bring him within the strict criteria set out in the definition of subversion. That definition was first enunciated by a Labour Government. I remind the House that subversion is defined asActivities which threaten the safety or well-being of the state, and which are intended to undermine or overthrow Parliamentary democracy by political, industrial or violent means.I make it clear today, as I have done in the past, that both elements of the definition must be satisfied before an activity can be regarded as subversive. It is not sufficient 156 for the safety or well-being of the state to be threatened. In addition, there must be an intention to undermine or overthrow parliamentary democracy. That definition governs the work of both the security service and the special branches in relation to subversion.
It is, therefore, crystal clear that peaceful political campaigning to change the mind of the Government or people generally about political issues cannot constitute subversion. But that does not mean that the security authorities should be prevented from investigating someone whose activities threaten the safety or well-being of the state and are intended to undermine or overthrow parliamentary democracy, just because that person happens to be a member of a trade union or of a particular pressure group. It would be wrong to investigate legitimate organisations as such, but it would be absurd to regard membership of such bodies as providing immunity from investigation for those who would otherwise legitimately be subject to such inquiries.
As my right hon. Friend the Prime Minister has reaffirmed, we do not believe there are any grounds for changing the present system of accountability of the security service to Ministers which has been in existence while successive Governments have been in power. The Bill does not alter that general arrangement. What it does do is to deal with the more limited but vitally important issue of authorised interception of communications in public systems.
I am well aware that some hon. Members would like to go further, and I understand why. They wish to see general privacy legislation. The Younger committee considered that possibility but rejected it. It pointed to the difficulty of formulating a sufficiently precise definition of the concept of privacy to form the basis of a legal remedy. Successive Governments have accepted its conclusion that the introduction of a general right of privacy would be likely to introduce uncertainties into the law which could have substantial adverse implications for the free circulation of information. But that does not mean that we should not take firm and constructive action where that is possible. It has been, and is, possible in a wide variety of ways. Like the Younger committee, we believe that the best approach is to deal with practical problems and find the right practical solution in each area. The Data Protection Act and, in a different way, the Broadcasting Complaints Commission are but a couple of examples of that approach.
It is an approach we are also applying to the question of surveillance. It is quite proper for people to be concerned about the use of surveillance or bugging devices. We have responded to that concern. Last December I published strengthened guidelines to the police on the use of such devices. The new guidelines tighten up substantially the previous criteria for the use of listening devices and of certain cases of visual surveillance: they extend the range of cases in which the chief constable's personal authority is required; and they rule out any attempt to use a listening device as a means of circumventing the controls over authorised interception. All that is new, and an extra protection.
§ Mr. Alex Carlile (Montgomery)
Does the Home Secretary agree that the Younger committee recommended that there should be a right of civil action on the part of 157 individuals who have suffered unwarranted eavesdropping of whatever sort? Why has not a right to go to court been included in the legislation?
§ Mr. Brittan
The Law Commission has been considering this issue, and has made some extremely important proposals. In its report on the law on breach of confidence in England and Wales, it suggested a very interesting approach. The hon. and learned Gentleman is right in that a civil remedy was suggested. The commission recommends that people who obtain information by "improper means"—which includes the use of surveillance devices, as the hon. Gentleman knows — would he subject to an obligation not to use or disclose that information. If they did so, they would be civilly liable to an action for breach of confidence. That approach has, I believe, the considerable advantage of concentrating on the real mischief—that is, the use to which information obtained by surveillance is put. It provides the victim with a direct means of redress. I am able to announce today that the Government intend to introduce legislation based on the Law Commission's proposals. This will offer people an important and wholly new safeguard in an area of legitimate concern.
But it is not the function of the present Bill to try to deal with these matters. This Bill deals, as I have said, with authorised interception and the means of controlling and regulating that. It lays down in law for the first time expressly the grounds on which the Secretary of State can authorise interception. All of these grounds are set out in the European Convention on Human Rights—and this is important—as are other grounds such as public safety and the protection of health and morals, which have not been included in the Bill because, although they are referred to in the convention, they cover areas where the Government do not consider interception at all appropriate.
The Bill incorporates into the law all the existing stringent controls and limitations, and it also establishes new statutory safeguards and a new means of redress. In the Government's view, it fully meets our obligations under the European Convention on Human Rights.
Clause 1 is the foundation on which the Bill is constructed. First, it creates for the first time a general offence of unlawful interception. Secondly, it determines the scope of the measure. Those who intentionally interecept communications in the course of their transmission in the post or public telecommunication systems will now be committing a criminal offence.
This provision for an offence of general application is new. There are at present offences in telecommunication and postal legislation applying to the staff of the organisations concerned. In certain circumstances, others might be liable to a penalty for improperly interfering with the mail. But interception as such is not generally an offence. We believe it should be. The clause provides a maximum penalty for the offence of two years imprisonment, or an unlimited fine, or both.
It will be essential that the new law is enforced as rigorously as possible. Advice will accordingly be issued to the police before the legislation comes into effect on how they should proceed if people come forward with information suggesting that such an offence may have been committed. The House will appreciate that such advice is necessary because the provision is wholly new and affords wholly new protection. The significance of the 158 offence will also be drawn to the attention of the Post Office and public telecommunications operators who people might in practice first approach.
The clause also establishes the exceptions to the offence. Obviously, the first is where a warrant has been properly issued by the Secretary of State. The two other exceptions provide for circumstances where interception may at present take place. They are, first, where it is with the person's consent, for example, in a case where obscene telephone calls have been made, and, secondly, where engineers or operators have to undertake what amounts to interception to establish that a line is functioning, for example, if it has been continuously engaged over a long period. The same exceptions are provided for in the existing legislation which applies to post and telecommunications staff.
Clause 1 also defines the scope of the Bill, that is, to communications in the public system. In telecommunications and the post, people have no option but to entrust information to the care of organisations over which they have no control. The sender and receiver are entitled to believe that the privacy of their communications on these systems will be safeguarded while they are out of their hands.
Clauses 2 to 5 deal with the authorisation of interception. Clause 2 empowers the Secretary of State to issue warrants. The warrants must specify the communications to be intercepted, and impose an obligation on the recipient to carry out the interception. The Secretary of State is empowered to issue a warrant if he is satisfied that it is necessary on one of three stated grounds. That is a central point. It is not sufficient that he feels a warrant might be useful in supplementing other material, or that the information it could produce could be interesting. The Secretary of State must give full consideration to whether interception is really justified to the extent that is "necessary". Moreover, as stated in the 1980 White Paper, warrants will be issued only where other methods have failed or, by the nature of things, are likely to fail.
The first ground on which, if it is necessary, a Secretary of State may issue a warrant is that it is in the interests of national security. That term is widely used elsewhere in the statute book, and occurs in some 50 statutes stretching over a long period. It is also precisely the term used in the European convention. It encompasses the protection of the country and its institutions from internal and external threats and the security of the realm, for example, from terrorists, espionage or major subversive activity.
The second ground on which, if it is necessary, the Secretary of State may issue a warrant is the prevention or detection of serious crime. As I told the House on 7 February, the police assess that in England and Wales in the past 10 years interception has made possible the arrest of some 5,000 people, and the recovery of approaching £100 million pounds worth of stolen goods and drugs. Those figures speak for themselves.
Ministers will continue to authorise such interception only on the basis set out in the 1980 White Paper and repeated in the recent White Paper, that is, only if there is good reason to think an interception would be likely to lead to an arrest and a conviction, and if the offence in question is a serious one. By "serious" is meant an offence for which a man with no previous record could reasonably be expected to be sentenced to three years' imprisonment, or an offence of lesser gravity in which either a large 159 number of people are involved, or there is reason to apprehend the use of violence, or in which the financial rewards of success are very large.
§ Mr. Alex Carlile
I am grateful to the right hon. and learned Gentleman. He has given some limitations which would help to define the meaning of "serious crime". Will he tell the House why the limitations are not contained in the Bill? I would welcome a concession such as that which he made when I intervened a few moments ago.
§ Mr. Brittan
The reason is perfectly simple. The limitations are difficult to put into statutory form.
§ Mr. Carlile
"Serious offence" is defined in the Police and Criminal Evidence Act 1984. Is the Home Secretary now saying that a "serious arrestable offence" is not serious?
§ Mr. Brittan
The hon. and learned Gentleman intervenes from a sedentary position having twice made a standing intervention. It is easier to deal with his standing intervention in an orderly fashion. He seems to imply that because there is a definition of "serious arrestable offence" in the Police and Criminal Evidence Act it would be appropriate to transport it into this Bill. I would not imagine that that course would commend itself because the definition of "serious", which is difficult to put into statutory form, although it has been put into the White Paper, is much narrower than "serious arrestable offence". "Serious arrestable offence" would permit interception in many cases in which it is not permitted under this definition.
§ Mr. Tony Benn (Chesterfield)
In a written answer in Hansard on 25 February 1982, Lord Whitelaw said that he had placed a copy of the Home Office guidelines to chief constables, which were issued in 1977, in the Library. The Home Secretary authorised chief constables to do surveillance where it was operationally necessary, operationally feasible and justified. There was no mention of a warrant. Will the Home Secretary explain the difference between those guidelines and the continual statements that he has authorised?
§ Mr. Brittan
The then Home Secretary, now my noble Friend Lord Whitelaw, was talking about surveillance, not the interception of communications. That is a completely different matter.
The third ground on which a warrant may be issued is for the purpose of safeguarding the economic well-being of the United Kingdom if, and only if, the information that it is considered necessary to acquire is about matters outside the United Kingdom, the Channel Islands and the Isle of Man. That restriction does not apply in the parallel criterion in the relevant article in the European convention.
As in the case of serious crime or national security, the Secretary of State has to consider that interception is not just desirable. Secondly, interception has to be protective. It must be concerned with safeguarding the country's economic well-being, not with promoting it. That means it relates to threats to that well-being.
Thirdly, it is the economic well-being of the United Kingdom which is at issue. By definition, the matter must be one of national significance and cannot be of a trivial kind which is peripheral to that well-being. It is a crucial 160 part of our foreign policy to protect the country against adverse developments overseas, which do not necessarily affect our national security so directly as to justify interception on that ground but which may have grave and damaging consequences for our economic well-being, such as a threat to the supply of a commodity on which our economy is particularly dependent.
Fourthly, the purpose of interception must be purely external. A warrant can be issued only in order to obtain information about the acts or intentions of people outside the British Isles. That is fundamental. Purely domestic events cannot give rise to a warrant on the grounds that they might affect the well-being of the economy. I repeat that the provision, like the other two grounds on which interception can be authorised, involves no extension whatsoever to the practices of successive Governments over a long period.
§ Mr. Tony Baldry (Banbury)
Am I right in thinking that, as a result of the Bill, the Executive will have no authority to intercept communications, either by tapping or bugging, other than by authority given specifically by an Act of Parliament?
§ Mr. Brittan
No, Sir. That is true for interceptions, but what is known as bugging is not covered by the Bill and comes under surveillance. As I have explained extremely clearly to the House on many occasions, the guidelines for surveillance, which covers bugging, have been published and strengthened by the Government.
§ Mr. Brittan
I shall give way in a moment.
During my speech I have explained why it was not possible to have general legislation relating to privacy. I explained why the compass of this legislation was confined to the specific matter of interception, and why in the case of privacy it was necessary to proceed in many different ways, one of which was by the issue of guidelines to the police and another by accepting the recommendations of the Law Commission, to which the hon. and learned Member for Montgomery (Mr. Carlile) referred.
§ Ms. Harman
Is it not the hallmark of a democracy that, unless one is engaged in criminal activities, one should be free to go about one's business without being interfered with by the state? Is not the Bill nothing more than a licence for Governments to snoop on people, including trade unionists, with whom they do not agree?
§ Mr. Brittan
No. It has been a long-standing view that, unfortunately, there are threats to our society and security represented by people who have not committed criminal offences. The hon. Lady can look back to the findings of the Birkett report as long ago as October 1957. At paragraph 141—no doubt the hon. Lady is familiar with it—Lord Birkett concluded:We are quite satisfied that the problems of national security are such that no reasonable weapon should be taken from the hands of those whose duty it is to watch over all subversive activities in the safeguarding of British interests. We are further satisfied, from the evidence before us, that the methods of interception hitherto employed are necessary, and have been productive of important results which could not have been obtained in any other way.Since then the position can hardly be said to have rendered subversion less likely and the methods of dealing with it less necessary. The definition of subversion issued by the Labour Government in 1975, with its careful provision of two limbs, both of which must be met, has 161 ensured that those responsible in the security services or special branch for dealing with such matters have dealt with them in a narrow compass and in a way that could not have been avoided. All Governments who have been in power during the relevant period have believed it necessary for the powers of interception to exist and for the special branch to operate in relation to subversion in the way that it does.
The only difference is that the present Government have tightened the guidelines on surveillance, have published and put on a statutory basis—as we are doing today—what is done with regard to interception, and will provide an effective remedy against any abuse of such powers of a sort which no other Government have dreamt of.
§ Mr. Jeremy Hanley (Richmond and Barnes)
Has the definition of subversion given by Lord Harris been clarified by the entry of the word "economic" in the phrase "economic well-being", with regard to the issue of warrants, and by the fact that warrants will be issued for economic well-being purposes only in cases outside the United Kingdom?
§ Mr. Brittan
I am grateful to my hon. Friend, whose interest in these matters is well known. The economic well-being criteria as they relate to events overseas have nothing to do with subversion. Subversion is a branch of the national security head and has a separate definition.
Clause 3 deals with the sort of warrants that can be issued. Warrants issued under clause 3(1) will be those directed at the communications of one person or organisation, or at communications to or from premises when it has been impossible to identify the person using the premises in suspicious circumstances. That arrangement is essentially the same as that described in the 1980 White Paper.
Warrants under clause 3(2) will replace those issued under the Official Secrets Act 1920 for the interception of external telecommunications. Those powers, as the Radcliffe report said in 1967, have been regularly exercised by Labour and Conservative Governments since the Act came into operation. The Government believe, like their predecessors, that they should continue to be available. The new provision will, as now, apply only to international telecommunications. However, its scope will be narrowed to bring it into accordance with existing practices. The warrant will be issued only on the same grounds as a clause 3(1) warrant.
Additionally, when the Secretary of State issues such a warrant, he will be obliged personally to issue a certificate describing the intercepted material which, having regard to the three statutory criteria, he considers it is necessary to examine. He will be required by clause 6 to ensure that there are arrangements preventing the examination of material not covered by the certificate. Finally, the certificate will not be capable of specifying communications to or from an address in the United Kingdom or islands unless the Secretary of State considers that their examination is necessary for the purpose of preventing or detecting acts of terrorism, and then only for a period of three months. All those elements constitute a narrowing of the existing provisions.
Clauses 4 and 5 deal with the issue, duration and modification of warrants. The arrangements rest on the requirement that the issue of a warrant is personal to the 162 Secretary of State. In no circumstances can he delegate the decision. If he did not take the decision, the warrant would not be a warrant and the interception would not he authorised.
Clauses 6 to 8 deal specifically with safeguards and the means of redress. They underpin the definition of the grounds on which interception can be authorised and the warrant powers. Clause 6 deals with the proper handling of communications after they have been intercepted. It obliges the Secretary of State to ensure that there are arrangements to secure two purposes. The first is to limit, in the case of a warrant for the interception of external communications, the examination of intercepted material to that specified in the certificate which he must issue at the time he signs the warrant. The second is to ensure that access to all intercepted material is confined to those who must have it; that only relevant portions are made available and that only the minimum numbers of copies are taken; and that it is kept only for the minimum necessary period.
Those requirements must be judged together. They add up to a comprehensive code for the handling of intercepted communications in all circumstances and by all those concerned. Those arrangements must always be in place, and as he signs warrants the Secretary of State must be satisfied with the existing arrangements or make new ones. It will be a significant part of the task of the commissioner to review the terms and effect of those arrangements.
Clause 7, with schedule 1, is in many ways the most important of the Bill, and its full significance has perhaps until now not been fully appreciated. Therefore, I wish to take this opportunity to underline what clause 7 and the schedule do and what their significance is. They break completely new ground by providing an independent, powerful and effective means of redress if interception has been improperly authorised. A tribunal will be established consisting of five senior lawyers. They will be appointed by the Crown by letters patent for a fixed term. They may be removed from office only on an Address to the Crown from both Houses of Parliament. Those arrangements are, in substance, the same as those which apply to the Ombudsman and they secure the tribunal's complete independence.
Anyone will be able to apply to the tribunal if he believes that his communications have been intercepted. It will be the tribunal's first task to determine whether an authorised interception has been directed against the applicant or the place where he lives or works. The tribunal will not be concerned in cases where there may have been interception without a warrant. Such interceptions would be a criminal offence to be investigated by the police, and prosecuted if there is evidence, in the usual way. The House will recall my explanation of the guidelines that will be given to the police to consider allegations of unauthorised and unwarranted interceptions and their examination.
§ Mr. Brittan
I shall complete my explanation of what the tribunal does before I give way.
If an application to the tribunal discloses evidence of an offence—an interception that has not been authorised —the tribunal would, of course, draw that evidence to the attention of the appropriate authorities for investigation as a potential criminal offence. But if the tribunal finds 163 that an interception has been authorised and directed against the applicant, that is far from the end of the matter, because it will then proceed to determine whether the Secretary of State contravened the provisions of the Act, for example, when he decided to issue the warrant, or in renewing or failing to cancel it. For this purpose, the Bill secures that the tribunal will have access to the same information which was available to the Secretary of State. The tribunal will form its own judgment as to whether the Secretary of State has contravened the Act. For example, it may conclude that the Secretary of State could not properly have considered that the warrant was necessary in the interests of national security or on any of the other grounds specified. If it concludes that there has been a contravention, the applicant will be informed.
The tribunal will then be able to do three things. It could quash the warrant; it could order the destruction of all the material intercepted in this connection; and it could order the Secretary of State to pay whatever sum by way of compensation it thought fit. The Bill will impose no limit on this sum. These are very considerable powers. They enable the tribunal to overturn the Secretary of State's decision if it considers there has been a contravention of the Act.
I hope that this explanation makes it clear that the tribunal will carry out an impartial and independent review of ministerial decisions in some of the most sensitive areas one could imagine, in a way that no tribunal or court of law has ever done before.
It would clearly, however, be ridiculous for somebody to be able to discover whether an interception had been directed against him simply by applying to the tribunal. That is why the tribunal cannot operate in public. But it will have full access to all the facts and arguments. In every case of an adverse conclusion, the tribunal will have to make a full report to the Prime Minister and must make a copy of that report available to the commissioner—to whose role I shall come in a moment—who will then be able to play a full part in ensuring that adequate corrective action is taken.
§ Mr. A. J. Beith (Berwick-upon-Tweed)
The Home Secretary has likened these arrangements to those that prevail in the case of the Ombudsman, but he omitted to point out that the Ombudsman reports to a Committee of the House. Therefore, there is an ultimate parliamentary review of the way in which he operates. All that the Home Secretary has said about unauthorised interception is so difficult to enforce that he must also take into account that it is upon his and the Prime Minister's supervision of the security services that that enforcement will depend, and those too in turn have no effective reporting mechanism to the House.
§ Mr. Brittan
The tribunal is analogous to a court in the sense that it is the individual who complains and if his complaint is upheld he will get proper redress in he form of the quashing of the warrant and the giving of compensation. Therefore, the analogy is not a proper one.
As to the analogy with the Ombudsman, I am sorry if I raced past in describing that part of the Bill, but some hon. Members appeared to want to intervene. The analogy concerns the appointment, and that is the significance.
§ Sir Philip Goodhart (Beckenham)
Does my right hon. and learned Friend accept that telephones are tapped 164 on occasion also by those who are hostile to this country? Does he recognise that some hon. Members are concerned that, as a result of clause 7 and some of the earlier clauses, it will be easier for the IRA and the KGB than for the security services to tap telephones in this country?
§ Mr. Brittan
I do not think that that is quite the consequence of the Bill, although I understand and respect my hon. Friend's anxiety.
§ Mr. Golding
Can the Home Secretary tell us whether employees working for public telephone operators will be able to give evidence to the tribunal about unauthorised telephone tapping without risking prosecution under the Official Secrets Act 1911? If employees cannot give such evidence, are we not to depend on official sources only for what are the facts of the situation?
§ Mr. Brittan
I am perfectly satisfied that the tribunal will have full powers to take whatever evidence is necessary in relation to a particular case. I do not believe that there will be any inhibition of the kind that the hon. Gentleman mentions.
§ Mr. Eldon Griffiths (Bury St. Edmunds)
Can my right hon. and learned Friend say whether the work of the tribunal will be entirely retrospective, or will it be in a position to interview and, indeed, perhaps make life difficult for those who are engaged in security matters at the time that they are doing it? Secondly, since there are to be five senior lawyers, quite properly so, and one continuing High Court judge as a monitor, does he really think that a financial memorandum saying that this can all be had for £100,000 is realistic?
§ Mr. Brittan
I think that the financial provision is realistic.
In answer to the first question, the tribunal will have to deal with a complaint when it is made. In a large number of cases — and this relates partly to the financial question — that will be a not very formidable task because there will be people who think that their telephone calls are intercepted when they are not, and it will be a simple matter to establish that that is the case. The more difficult task will occur when there has been interception, and the tribunal will have to consider whether, on the material available to the Secretary of State, it was justified. That is a task which it will conduct.
§ Mr. Maclennan
In describing the powers of the tribunal, the Home Secretary made the surprising assertion that, if it considered that the Secretary of State could not properly have exercised his discretion under clause 2, it could provide a remedy. That seems to be a construction of the Bill which has been put upon it by nobody else. Can the Home Secretary give the House his authority for that claim?
§ Mr. Brittan
I do not understand why the hon. Gentleman is surprised. If he had listened to the various matters that were covered when I made a statement on the White Paper, he would know that there is no doubt that it will be within the power of the tribunal to decide whether the interception was properly authorised — in other words, whether the material placed before the Secretary of State was such that he could properly have come to the conclusion that it came within the criteria specified as being ones which permitted interception. That is the task of the tribunal about which there is no doubt or mystery.
165 If the hon. Gentleman finds that the redress is wider than he had assumed, I am glad to clarify the situation. There is no doubt about the position.
The post of commissioner, established by clause 8, complements the tribunal. Whereas the tribunal is charged with reviewing the Secretary of State's decisions when it receives an application, the commissioner conducts a continuing review on his own initiative. His responsibilities cover everything to do with the warrant powers in clauses 2 to 5 and all the arrangements for the handling of intercepted material made under clause 6. He is in this way looking not only at the Secretary of State's individual decisions, but at everything to do with applications that are put before the Secretary of State and with the execution of warrants. In short, the commissioner will oversee the whole field of authorised interception at all levels and in all respects.
The commissioner will be a judge of at least High Court standing, and will be the successor to the existing monitor of interception arrangements established following the 1980 White Paper.
As a consequence of his continuing review, the commissioner will be required to take two courses of action. First, if at any time it appears to the commissioner that there has been a contravention of the warrant powers not already reported on by the tribunal he must report that matter to the Prime Minister. Secondly, he is obliged to submit an annual report to the Prime Minister on the general exercise of his functions. The Prime Minister will be obliged to lay that report before Parliament, subject only to the deletion, after consulting the commissioner, of any passages whose publication would prejudice national security, the prevention or detection of serious crime or the safeguarding of the country's economic well-being.
The various safeguards introduced by the Bill need to be judged—
§ Mr. James Callaghan (Cardiff, South, and Penarth)
I recognise that the commissioner is responsible under the Bill for interception only. With regard to any official of MI5 who felt unhappy or concerned about the work that he or she was being asked to do, which I understand was the case that arose in the recent television documentary, will the Home Secretary consider before the Bill is considered in committee extending the functions of the commissioner so that any officer of MI5 concerned not only about interception but about the nature of the targeting that he or she was asked to do might be able to go to the commissioner rather than to the television studios in order to provide an outlet for somebody who is dissatisfied?
§ Mr. Brittan
I understand what the right hon. Gentleman is suggesting, but I do not believe that the commissioner is the best route for dealing with the matter. It is the task of the director-general to support and guide the staff of the service in carrying out their functions.
As it happens, I have taken a personal interest in this matter and I have made it clear that I would encourage anyone in the security service who is concerned about any aspect of his work to take up the matter with senior management in the proper way—[Interruption.] I know that the right hon. Gentleman, if not others, is concerned about this issue.
I regard it as an important part of management's function in any organisation to take seriously and to listen 166 carefully and sympathetically to any anxieties. I would not wish there to be an atmosphere in which any individual felt that it was improper, inconvenient or unwelcome for him to raise his concerns.
That is something which the organisation itself must ensure and which I, as Home Secretary, must be satisfied the organisation is ensuring. I assure the right hon. Member for Cardiff, South and Penarth (Mr. Callaghan) that it is an aspect of the task to which I attach considerable importance.
The various safeguards introduced by the Bill need to be judged together. The bedrock of the scheme is the offence of unlawful interception; any interception not expressly provided for, whoever, carries it out, is a criminal offence. There are no exceptions to that. Only a Secretary of State may authorise interception and he may act only on the criteria laid down in the Bill. His decisions may be overturned by the tribunal if it finds that he has acted outside his powers. He is not, therefore, the final arbiter either as a matter of law or in practice. He is required to take steps to ensure the proper handling of material gained from interception. The exercise of all his powers, and all the associated arrangements, are subject to scrutiny by the commissioner, who will report on them. The scheme is, therefore, one of a series of complementary checks. Taken as a whole, as they must be, the provisions add up to a comprehensive series of safeguards.
The Bill raises issues of great importance to the preservation of law and order and of our national security. The Government have been far more open in their approach to these matters than any of their predecessors. The Bill is, I believe, a considerable further step forward. It will reinforce public confidence in the handling of this most sensitive area, providing for the first time a means of redress for the individual. But we must also ensure that nothing we do prevents us from safeguarding our national interests. That is something the public also expects of us, and is fully entitled to. The Bill maintains the right balance, and I commend it to the House.
§ Mr. Gerald Kaufman (Manchester, Gorton)
I beg to move, to leave out from "That" to the end of the Question and to add instead thereof:That this House declines to give a Second Reading to a Bill which gives statutory authority to interception of communications on criteria at once so vague and so sweeping as to permit interception on an unacceptably wide basis, and which provides insufficient safeguards for those adversely affected by unlawful interception.The advance publicity orchestrated by the Home Secretary for his speech in the Daily Telegraph yesterday said:Mr. Brittan, Home Secretary, is preparing a trenchant counter-attack against the Government's critics of telephone tapping for tomorrow's Commons debate on the issue.I hope that, if that speech was trenchant, the Home Secretary will never set out to be soporific.
We debate the Bill at a time when there is profound concern about the erosion of civil liberties in Britain and about serious allegations made in connection with the security services. That concern will have been deepened as a result of the 59-minute smug, complacent and insensitive speech that we have just heard from the Home Secretary.
§ Mr. Kaufman
Yes, I wrote it beforehand — [interruption.]—in anticipation, knowing the right hon. and learned Gentleman well. He may bore, but he never disappoints.
In recent weeks, particular disquiet has been expressed following the allegations made in the television programme "MI5's Official Secrets", the programme which was cravenly banned by the Independent Broadcasting Authority and which then became widely available and discussed, even though it was banned.
In Soviet Russia, material that is prevented from being officially published but is then illicitly circulated is known as samizdat. It is a sign of the similarity of attitude of this Government and of the Soviet authorities towards disfavoured dissent that, when it was required, a samizadat system instantly sprang up in Britain, its somewhat incongruous parents being The Guardian and Virgin Records.
That programme was finally shown last Friday and, as we know, a film transmitted on Channel 4 normally has an audience that does not compare all that favourably in size with that of a closed circuit television programme. However, the IBA's craven and contemptible ban ensured that the programme "MI5's Official Secrets" was watched by several million people.
The IBA suppressed that programme for fear of being prosecuted under the section 2 of the Official Secrets Act. It must be said that some puzzlement has been aroused by the manner in which the Attorney-General has been operating the Official Secrets Act in the past few months. At best, his conduct has been capricious. At worst—and much more likely—it seems that it has been motivated by concern for the interests of the Conservative party rather than the pursuit of justice.
When Sarah Tisdall leaked information which had not the tiniest impact on national security but simply revealed a characteristically squalid example of news management by the Secretary of State for Defence, she was tried at the Old Bailey and sent to goal. When Clive Ponting leaked information which the prosecution admitted did not breach national security, he too, found himself in the Central Criminal court.
Yet what happens to Cathy Massiter, an employee of MI5 for 14 years, when she comes forward with what she claims are details of MI5 operations entailing serious allegations of malpractice by the special branch, by MI5 and by the Secretary of State for Defence? What happens? Absolutely nothing.
Indeed, it was indicated that the matters involved in Cathy Massiter's allegations were far too secret to be aired in court. Thus, the lesson for public servants who are thinking of leaking is clear: if one wants to reveal something, make sure it is nothing trivial. The more secret one's information, the greater one's chance of staying out of the dock.
One may, however, be sent to see a psychiatrist, as Cathy Massiter was. It seems that the parallels between this country and Soviet Russia are growing, if official reaction to dissidents here is to treat them as candidates for mental hospitals.
Why did the allegations made in the "20:20 Vision" programme arouse such widespread alarm? It was partly because the allegations implied that Ministers might not 168 have been carrying out their duties according to the rules officially laid down. Even more, it was because a fear had arisen that the security services might have been taking, on their own initiative, actions which had the most alarming implications for civil liberties and the right to engage in free, non-violent, democratic dissent in Great Britain.
The allegations against Ministers are twofold. It is alleged — and so far it has not been denied — that in August 1983 the Home Secretary signed a warrant authorising the tapping of the telephone of Mr. John Cox, a vice-president of the Campaign for Nuclear Disarmament, on the grounds that he was a Communist and therefore a subversive, yet that label of subversive violated the definition laid down by Lord Harris, repeated by the Home Secretary this afternoon and explicitly accepted by the Prime Minister.
Miss Massiter claims that Mr. Cox did not meet the test of being a major subversive, terrorist or espionage threat, which alone under the rules would have qualified him for surveillance. He was, she says, simply the best person that MI5 could think of if it was to have an excuse for tapping the telephone of a leading member of the Campaign for Nuclear Disarmament.
Again, she alleges that secret information obtained by covert and clandestine means for MI5 was passed to the DS19 unit at the Ministry of Defence. She claims that a briefing paper on CND was specifically prepared for MI5 by the Secretary of State for Defence. She claims, further, that this material was then used by the Secretary of State for party political purposes.
If this allegation is true, both MI5 and the Secretary of State are in violation of the Maxwell Fyfe directive of 1952, which has been cited by the Home Secretary this afternoon, because that directive lays down:It is essential that the security service should be kept absolutely free from any political bias or influence.Those allegations are disturbing enough, but Miss Massiter has made further charges against the security services. She says that they infiltrated the Campaign for Nuclear Disarmament even though that organisation cannot, within the Home Secretary's own rules, be described as subversive. Indeed, the Home Secretary has repeatedly given the CND a clean bill of health. He told me in the House on 10 December:So far as the legitimacy or otherwise of CND is concerned, I do not think it is for me to legitimise it or otherwise. There is no doubt that peaceful political campaigning to change the mind of the Government and of people generally about the validity of nuclear disarmament, whether unilateral or otherwise, is an entirely legitimate activity which does not fall within the very strict criteria of the 1980 White Paper." [Official Report, 10 December 1984; Vol. 69, c. 737.]That is what the Home Secretary said and he has repeated the essence of that statement on several occasions since. Yet, according to Miss Massiter, MI5 deliberately and wrongfully classified Joan Ruddock, the Chairman of CND, as a subversive so that they could open a file on her, including Special Branch references to her movements.
Since the controversy about the Channel 4 programme began, there have been further serious allegations about unauthorised activities by MI5, including telephone tapping and surveillance by other means of organisations which do not meet any of the required criteria. Misgivings have become widespread. This is a comment — very anguished, and properly so—in a leading article in the Sunday Telegraph last week: 169The chief danger of police-state methods creeping into democracies is not that they are authorised from above but that they generate themselves from within.Concern expressed in this way over a wide spectrum of opinion in this country was at first brushed aside by the Government. At length, however, 12 days ago, the Prime Minister announced that she had asked Lord Bridge of Harwich to conduct an inquiry into the allegations. As we know, Lord Bridge reported within five days. Some people asked how he was able to complete his investigation in so short a period. For me the puzzle was how he managed to spin out the time, for he investigated hardly anything.
When the Home Secretary made his announcement of the inquiry, in that curious way that he has, I asked him a series of questions about the terms of reference of this inquiry. I asked him if Lord Bridge would deal with allegations of persons being falsely classified as subversive. The Home Secretary said that Lord Bridge would. But there is nothing in Lord Bridge's report to indicate that he did.
I asked if Lord Bridge would deal with allegations that material obtained by MI5 had, against the principles of the Maxwell Fyfe directive, been used for party political purposes. Again the Home Secretary said yes. Again there is no evidence from Lord Bridge's report that he did anything of the kind.
There were two areas of concern which the Home Secretary made it clear would not be within Lord Bridge's terms of reference. One was infiltration other than interception. The other was unauthorised interception — that is, interception not authorised by Ministers but undertaken independently and illegally within the secret services. Lord Bridge duly, as required, ignored these matters. I do not criticise him at all. He looked into only what he was told to look into. So, inevitably, he provided the report that he was required to provide. But that was really not a report. It was a theorem; all that was missing at the end of it was the letters "QED".
No wonder that this disreputable exercise has allayed no fears but instead aroused derision. Indeed, there are those who say that the Prime Minister only did it in a desperate attempt to prove that she has a sense of humour.
§ Mr. Kaufman
The hon. Member for Richmond and Barnes (Mr. Hanley), the son of a well-known comedian, is right to complain that anybody should allege that the Prime Minister has a sense of humour.
The question arises, have elements within our security services got out of control? Are they acting irresponsibly on their own initiative? Are they taking an improper interest in political and industrial matters far beyond their proper purview?
§ Mr. Winnick
Accepting that, indeed, it is quite likely that MI5 is out of control — as a former Home Secretary, the right hon. Member for Glasgow, Hillhead (Mr. Jenkins), has more or less said in a letter in The Times today — is it not a fact that the guidelines first mentioned by Lord Harris in February 1975 are so wide that it is quite justified for the special branch to do the kind of investigation that I mentioned earlier during the Home Secretary's speech — namely, to ask a former CND official all kinds of questions which had no bearing whatsoever on national security?
§ Mr. Kaufman
It is arguable that, as my hon. Friend suggests, the guidelines are too wide, but, however wide they may be, the signs are that if these allegations are accurate, those guidelines are being exceeded. That is the problem; we do not know, and it is worrying enough that such questions even have to be asked.
It is also grubbily characteristic of this Government that their response is not to seek to allay fears by seeking the truth, however much of the truth it may be possible to make public in these shadowy areas. Their response, as ever, is "How can we cover it up?" If the Home Secretary really believes that we are satisfied with what he has told us today, with him looking into matters on his own account during a period of a very few days, he is even more complacent than we thought he was.
§ Mr. Eldon Griffiths
It is of course relatively easy for the right hon. Gentleman, like the right hon. Member for Glasgow, Hillhead (Mr. Jenkins), to make allegations about members of the security forces being out of hand and conducting themselves in a way that is illegal as well as beyond the guidelines. But what evidence does the right hon. Gentleman have and, if he or the right hon. Member for Hillhead have any, why has it not been brought Forward and given to the Home Secretary?
§ Mr. Kaufman
I am not making allegations, and I do not speak for the right hon. Member for Hillhead (Mr. Jenkins). I am saying that allegations have been made and that those allegations have aroused widespread misgivings across a wide spectrum of public opinion, including the Conservative press. If the hon. Member for Bury St. Edmunds (Mr. Griffiths) does not care about it, he does not care about civil liberties.
The matters that we are discussing this afternoon are very important in a free society. They will not go away. Her Majesty's Opposition insist that what is needed is not a rich charade like the Bridge inquiry, or the kind of exercise that the Home Secretary has gone through and on which we have to take his word, or an internal police examination of the kind he says, but a full and independent inquiry. Only in that way can serious allegations be answered, and proved or disproved.
It is against that background that we must examine the Bill, the Second Reading of which the Home Secretary moved today. We must admire the effrontery with which he did it. He boasted that it is the first statutory limitation on interception. That is true. But the Government never wanted to do it. They have been dragged kicking and screaming all the way. They would have continued to resist if it had not been for the Malone case. It was Mr. James Malone who, when tried for dishonestly handling stolen goods, discovered that his telephone had been tapped by the police. It was he who brought a High Court action against the Metropolitan police. It was he who, even though he lost the case, heard the judge, Sir Robert Megarry, state in court that telephone tapping is a subject that cries out for legislation, who took his case to the European court and who then, almost a year ago, saw the House of Lords pass, against the Government's wishes, a Labour amendment to the Telecommunications Bill placing controls on interception. That is why the Government are legislating. It is not because they want to; it is because they have to.
The Bill that the Government have brought forward is only a little better than no Bill. Indeed, in some ways it 171 actually makes matters worse than the current practice with regard to warrants for telephone tapping. What is more, it deals only with telephone tapping and interception of letters sent by post. Incidentally, talking of interception of letters sent by post, it is appropriate that today the Post Office has brought out a new series of pictorial stamps, all of which show pictures of bugs.
§ Mr. Kaufman
Not at this point. I will later, if I have the opportunity. The Home Secretary spoke for an hour, and I want to leave time for other right hon. and hon. Members to make their speeches.
Yet we all know that telephone tapping is now technologically an almost primitive form of interception. Other methods are freely available. Pick up any edition of Exchange and Mart, and one will find dozens of advertisements. Here is just one out of many:Security and surveillance equipment. We have just moved to new premises and are currently the largest manufacturer in the United Kingdom of hi-tech microchip systems. Among our vast range are micro transmitters, pens, adaptors, calculators, lighters, body-worn desk equipment, etc., all types of microphones, probes, dishes, rifle, wall and window, etc. VOS units, receivers, recorders telephone monitoring equipment, infinities, etc.… Send sae … for 32-page catalogue … Access, Barclay and American Express cards welcome.That advertisement appears in the section of Exchange and Mart disturbingly headed "Leisure".
The Royal Commission on Criminal Procedure specifically required that in the legislation that it recommended should be introduced:The specific practices subject to regulation should be set out in secondary legislation to enable new techniques to be incorporated as they are developed.That recommendation of the Royal Commission has been ignored. It said that warrants should be specific, yet the Bill allows interception without any warrant when a person occupying the premises consents. So a live-in landlord can authorise the tapping of his tenants' telephones.
§ Mr. Kaufman
My hon. Friend, who lives a more gregarious and lively life than I, makes that point, too. In my constituency, I simply deal in squalid multi-occupation.
The Bill allows single warrants covering a number of addresses or whole organisations. So the number of warrants issued need represent only a fraction of the number of people to be covered by such warrants. In certain circumstances, tapping of communications into or out of the country will not carry even such safeguards as attach in the Bill to warrants for internal interception.
Furthermore, the definitions of the criteria for issuing a warrant are vague to the point of giving the Home Secretary and his colleagues a completely free hand. The Home Secretary referred to the criteria in clause 2 —national security … preventing or detecting serious crime; or … safeguarding the economic well-being of the United Kingdom"—and compared them with the authority given by the European Convention on Human Rights for interception in the interests of national security, prevention of disorder or crime and safeguarding the economic well-being of the country. But the admirable but abstract sentiments of a general declaration are not enough to provide the tight 172 definitions that are required by an Act of Parliament by which specific actions will be authorised. What is extraordinary is that the Government have, in drafting the Bill, brushed aside their own White Paper "Interception of Communications", which they issued in 1980 and from which the Home Secretary quoted freely this afternoon, therefore implying that he still believes it. That White Paper did not vaguely cite "national security", in the words of the Bill, but said:there must be a major subversive, terrorist or espionage activity that is likely to injure the national interest".There is no wording like that in the Bill. The 1980 White Paper did not vaguely cite "serious crime" as the Bill does, but said:there must be good reason to think that an interception would be likely to lead to an arrest and a conviction.There is nothing like that in the Bill. The Government's own White Paper said that if a warrant was to be issued for interception on behalf of the security service, it must be a principle of authorisation that — I quote once again from the Government's White Paper cited by the Home Secretary—the material likely to be obtained by interception must be of direct use in compiling the information that is necessary to the Security Service in carrying out the tasks laid upon it by the Directive".That is, the Maxwell Fyfe directive.
Again, there is nothing like that in the Bill. In laying down conditions for the issue of warrants to assist in detecting crime or on behalf of the security service, the Tory White Paper of 1980 insisted:normal methods of investigation must have been tried and failed, or must, from the nature of things, be unlikely to succeed if tried.There is nothing like that in the Bill.
Therefore, we shall move amendments to put all Lord Whitelaw's principles into this Home Secretary's Bill, because, taking into account the free-for-all permitted by the vague inclusion of "economic well-being", clause 2 will, as it stands, and if it passes into law in that form, be hailed as a tappers' charter. The duration of warrants is unacceptably expanded. This is what the 1980 White Paper said about it:Every warrant is time-limited: it includes a date on which it expires if not renewed. All warrants are first issued with a time limit set at a defined date not exceeding two months from the date of issue, and are subject to review before expiry. Warrants may be renewed only with the personal authority of the Secretary of State. Warrants issued on the application of the police may be renewed for not more than one month at a time; warrants issued on the application of the Customs and Excise may be renewed for not more than two months at a time; and warrants issued on the application of the Security Service, and postal warrants on behalf of the Metropolitan Police Special Branch, may be renewed for not more than six months at a time".That was current practice according to the Government in April 1980, yet clause 4 of the Bill permits all warrants — all the categories that I have just quoted from the Government's White Paper — to be issued for a full six months and to be renewed for a similar period. In the light of that fact, how could the Home Secretary claim in his speech that it is neither the purpose nor within the scope of the Bill to widen current practice, when that provision does widen current practice? We shall table amendments to put that right as well.
Perhaps the most grotesque provision is contained in clause 9. It changes the law so that in future there may be no reference in court proceedings to the use of interception. Of course, the Malone case and what followed from it stemmed from the admission of tapping 173 made by the police in court during that trial. In turn, the Bill stems from the Malone case. So we have the extraordinary fact that if at the time of the Malone case the proposed legislation had been in operation, the Bill would never have been brought forward. Just think about that, Mr. Deputy Speaker.
The safeguards in the Bill, about which the Home Secretary has boasted, are almost meaningless. The Birkett report of 1957 recommended:There should be a regular review of outstanding warrants not less than once a month both by the Home Office and by every authority that is granted a warrant to intercept.No such review is required by the Bill. We shall seek to insert it.
The European convention, which the Home Secretary has quoted in aid this afternoon, lays down:Everyone whose rights and freedoms, as set forth in this convention, are violated shall have an effective remedy before a national authority.Yet the tribunal created by the Bill will not be effective. It is to be composed entirely of lawyers. The Home Secretary boasted about that. There is no reason why it should be composed entirely of lawyers. It would be useful, for example, to have a communications engineer as a member, since he would know more about the subject than the barristers, advocates and solicitors who are to be recruited.
Incidentally, the Home Secretary gave no clear reply to the question by my hon. Friend the Member for Newcastle-under-Lyme (Mr. Golding) about whether telecommunications employees would be able to give evidence to the tribunal without risk of breaching the Official Secrets Act 1911. The Home Secretary responded with a vague generality. I hope that before the end of the debate we shall have a specific reply to that question.
§ Mr. Kaufman
Something in the Bill would be better but we should like an anticipation of what is to be put in the Bill.
In any case, the tribunal will be able to operate only if a warrant has been issued against a person who complains. Therefore, it will not be able to investigate the possibility of unathorised interception. If a warrant has been issued, all the tribunal can do is to check that the statutory procedures have been observed. It cannot consider the merits of the decision.
§ Mr. Brittan
That is not correct. I made it clear that it has to consider, among other things, whether or not the criteria set out in clause 2 have been met. That is clear. In response to interventions by the hon. Member for Caithness and Sutherland (Mr. Maclennan) I clarified that point beyond peradventure, as I have done in the past. The right hon. Gentleman persistently and wilfully refuses to see what is plainly there.
§ Mr. Kaufman
I am grateful to the Home Secretary for that absolute, clear, unquestionable, categoric assurance. I hope that he will continue giving that kind of assurance in answer to questions such as the one I have just put again on behalf of my hon. Friend the Member for Newcastle-under- Lyme.
§ Mr. Kaufman
Indeed, yes, as my right hon. and learned Friend says, the Home Secretary leapt to his feet when he was able to correct me on another point. Let him 174 leap to his feet again and give us the other assurance which we require. No? That is a pity. Therefore, in a way we have our reply.
Overall, even though we have got a further assurance, which I welcome, it has to be said that compared with the likely results of the activities of the tribunal, the Bridge report looks like a mighty blow for civil liberty.
The new office of commissioner has greater and potentially more beneficial powers. I very much hope that the important suggestion made by my right hon. Friend the Member for Cardiff, South and Penarth (Mr. Callaghan) will be considered by the House. It is important that members of the security service should have access to an independent person if they have misgivings about what they are being asked to do.
The drawback about the office of commissioner is that he will be appointed by the Prime Minister and will report to the Prime Minister. There will be no accountability to Parliament. We strongly take the view that the House must seize the opportunity of the Bill to start the process of making the security services responsible to Parliament. We believe that the commissioner should be appointed not by the Prime Minister but by the House, and that he should report not to the Prime Minister but to a Select Committee of the House. He should be a servant of Parliament, not a functionary of the Government. We shall be moving amendments to bring that about.
When it commented on the White Paper from which the Bill originated, the Financial Times said in a leading article:at every sensitive point of balance between the rights of the individual and the interests of the state, it fails the individual … the best advice seems to be to say and write as little as possible.That is a devastating comment to be made by a responsible newspaper on the state of freedom in this country under this Government, but it is an accurate statement.
The turmoil taking place in the security services and the allegations about transgressions of the rules by the security services are harmful to the very national security that those services are supposed to safeguard. If MI5 wastes so much of its time spying on people like Joan Ruddock, no wonder it was unable for so long to spot a Bettaney in its own ranks. If MI5 is accumulating mountains of paper about hundreds of thousands of often innocuous persons, that is enormous time and effort taken away from dealing with the real enemies of the country.
The problem is that all security services operate in a climate created by the Government of the day. If a judge can say that the political interests of that Government are synonymous with the national interest, it is understandable that MI5, or at any rate some people in it, make the same mistake, regardless of the directives that govern them. If we have a Prime Minister who says that local councils which wish to pursue their own policies rather than those of the Government must be put down, as she did three days ago, people in MI5 can be understood, if not forgiven, for taking that ugly intolerance as the new conformity. If we have a Prime Minister who says of the miners' strike, as she did three days ago, "I am fed up with people saying, 'Don't gloat'," people in MI5 can be understood, if not forgiven, for regarding trade unionists as persons who can justifiably be spied upon.
The Prime Minister has become like the Queen of Hearts in "Alice in Wonderland". She goes about all over the place saying, "Off with their heads !." Indeed, it is 175 difficult to be sure whether it was the Lewis Carroll character or the right hon. Member for Finchley (Mrs. Thatcher) who made that memorable pronouncement, "Sentence first, verdict afterwards." During the past six years we have had too much of, "Sentence first, verdict afterwards." We need proper, fair, democratic procedures, and never more so than in these matters which the Diplock report four years ago rightly said have always been looked upon with suspicion and distaste. It is because the Bill fails to meet that test that we ask the House to vote for the amendment.
§ Sir Edward Gardner (Fylde)
My concern about the Bill is a concern, shared, I like to think, by hon. and right hon. Gentlemen on both sides of the House, that there should be a proper and acceptable balance between the right to personal liberty and the need for an effective and efficient security service as an essential part of the defence system of the country.
I was at least made happy by one sentence used by the right hon. Member for Manchester, Gorton (Mr. Kaufman) when he was attacking the Bill. He acknowledged that this country has real enemies. Those real enemies are within our midst and have to be dealt with. One way of dealing with them is by the proper and efficient use of the security service.
My concern is also that the powers that are given to the security service should be, as indeed they are, express and limited powers, and should in no case be extended into general powers. I am also concerned, as I am sure that the House is, that nothing should be done to disturb or to diminish our right to personal liberty without the clear, imperative and overriding need to deal with subversive activities and the activities of espionage and terrorism.
It is unrealistic to suppose that our personal liberties can be protected and sustained without giving up something at times. Every time we go to an airport and have our clothing searched, or every time we go to a public building and are stopped and asked to open the packets that we are carrying, that is offensive to public liberty. However, it is something that we accept because if we do not accept it we should be giving terrorists, subversives and spies an open invitation to get on with what they are doing and to do their worst. These things have to be accepted by society, and we know that.
I am particularly concerned, as I hope the House is, that we should have an efficient security service using the same weapons that are used against us by our secret enemies — the weapons of secrecy, stealth and surprise. One thing that the House and everyone who values personal freedom has to be careful about is to see that we do nothing to undermine the efficiency of the secret service, because if the secret service is no longer to be secret, what is it? I agree with my hon. Friend the Member for Stroud (Sir A. Kershaw) who said the other day in the House that he wanted his money back. We must have secrecy, and that secrecy must be protected.
§ Mr. Winnick
That intervention by the hon. Member for Stroud (Sir A. Kershaw) concerned us because it was made without qualification and quite obviously meant CND and trade union people. The hon. Member said, to roars of Tory laughter, that if such people are not being 176 checked he wanted a refund. Does this not illustrate the lack of concern on Tory Benches over civil liberties? People such as Joan Ruddock, Mrs. Haigh and Bruce Kent are being investigated because of their political views, but they are not a threat to national security. That is the core of the issue that concerns Labour Members.
§ Sir Edward Gardner
This is to turn reality on to its head. We do not say that, because somebody happens to be a member of a trade union or of the CND, or is a dentist or a member of the Bar or any other particular calling or profession, it therefore follows that they are subversive and enemies of the country. However, it does follow, as everybody who looks at this problem with any sense of reality must accept that it follows, that such organisation as trade unions, the CND and, for all I know, professional bodies throughout the country, offer cover to our secret enemies. Therefore, if one is seeking to identify those enemies, one has to see who is in these organisations.
§ Mr. Eldon Griffiths
Does my hon. and learned Friend agree that hostile intelligence agencies would be failing in their duty to their masters if they did not seek to penetrate such organisations? They do not always succeed, but it must be right for our intelligence agencies to keep an eye on those hostile agencies that seek to infiltrate such organisations.
§ Sir Edward Gardner
I hope that in what I have said I have already made my meaning clear. That is, that if one is looking for secret and hostile elements, one has to bear in mind that they can operate only under a cloak of secrecy and they may do that as a professor in a university, or as a member of the dental profession, a trade union or the CND.
§ Sir Edward Gardner
The hon. Gentleman is right. That is an important point, to which I shall come.
The hon. Member for Walsall, North (Mr. Winnick) is standing reality on its head because the secret service has to identify people who shelter under anonymity and discover who the hostile elements in the country are who shield themselves by secrecy. This can only be done — there is no other way of doing it—by a security service that can rely on secrecy, stealth and surprise.
The House will remember that Lord Birkett in 1957, when he was making his report on the security service, saw as a highly effective method of identifying secret enemies the interception of communications. Lord Birkett said that this is the only effective method of counter-espionage and of safeguarding the vital secrets of the state. No doubt, if he had been reporting today, Lord Birkett would have added to that, as he would have had to, protection against terrorists.
§ Mr. Douglas Hogg (Grantham)
Does my hon. and learned Friend agree that there is a danger in saying that the powers should be directed at those who are hostile? Hostility to the state is not what is objectionable, because in a sense that is a matter of opinion. It is the willingness to use either violent or subversive methods to promote that hostility that is objectionable.
§ Sir Edward Gardner
I agree with my hon. Friend. I was using a blanket word, and I should put it more carefully. I should use with greater confidence the definition of subversive that Lord Harris gave in the other place when he was Minister in the Labour Government in 177 1975. My right hon. and learned Friend the Home Secretary quoted that well-known definition. It is that subversive activities are those that affect the safety and well-being of the state and that are intended to overthrow and undermine parliamentary democracy by political, industrial or violent means.
The Select Committee on Home Affairs has had its attention directed to Lord Harris' definition. The Committee has taken a considerable amount of evidence from a number of witnesses, including my right hon. and learned Friend the Home Secretary. No doubt it is a matter of debate whether that definition is one that ultimately will be accepted. I say personally, divorced altogether from what the Select Committee says, that when I started to look at that definition, I had some doubts about it. I was especially uncertain about the wisdom of including a reference to the well-being of the state. However, having spent a considerable amount of time — as did all the other members of the Select Committee—in considering the definition, I am coming to the conclusion that it is, as my right hon. and learned Friend the Home Secretary said when he gave evidence to the Committee, a definition that it would be hard to improve upon.
While taking evidence, we asked a number of witnesses in public session — so I can repeat what was said without any breach of privilege — about that question. Speaking personally, I felt that they had some difficulty in improving upon the Harris definition.
§ Mr. Hanley
In the context of the Bill, does my hon. and learned Friend not agree that qualifying the phrase "well-being of the United Kingdom" by the word "economic" makes the Bill clearer than the definition of subversion?
§ Sir Edward Gardner
That may well be so. It is because I feel offended by any possibility of the misuse or abuse of the powers—the limited powers—given to the security service that I especially welcome clause 7, which establishes a tribunal to determine whether the Secretary of State responsible has exercised his powers correctly in granting a warrant. I am pleased to note that anyone who feels aggrieved and thinks that he has been injured by incorrect exercise of the powers used by the Secretary of State to issue a warrant can now look forward, by means of appearing before the tribunal, to being compensated for any injury.
I am also very content that the Government in clause 1 have created a criminal offence of the unlawful interception of communications which, if proved, will attract a prison sentence of up to two years or a fine.
§ Mr. Douglas Hogg
I wonder whether my hon. and learned Friend can help the House on one point? The tribunal has an important role to play in testing the appropriateness of the warrant, but how does someone go to the tribunal and establish that the Secretary of State was wrong to issue a warrant on the grounds that he thought it necessary to do soin the interests of national security"?Is that not a concept so broad as to be incapable of challenge?
§ Sir Edward Gardner
I do not think that such a case would be incapable of proof, although it might well be difficult to prove. It would depend entirely on the 178 circumstances that gave rise to the allegation and how each and every one of those circumstances could be established before the tribunal.
Although I welcome clauses 7 and 1, I am not satisfied that the Bill goes far enough. If a member of the security service had a suspicion, or had cause to believe, that powers were being misused or abused, there is no procedure in the Bill that would help him to make his complaint known to any particular person upon whom he could rely for remedy. I put to my right hon. and learned Friend the argument that no matter how excellent the quality of a public service may be, there must always be a risk that there will be in that service someone who will misbehave himself. It that happens now, I cannot see how that misconduct will be exposed to inquiry or how someone who suspects or believes that that misconduct is taking place can appear before someone who could determine whether the suspicion was justified. I cannot, in reality, believe that a member of the security services is likely to go to his superiors and say that he believes that certain misconduct is taking place. To do so might well put at risk his future hopes of promotion or even his job.
I therefore ask my right hon. and learned Friend to consider seriously the possibility of appointing an independent and objective member of the security services to whom those with such a complaint could turn, and who could, within the secrecy and security of the service, investigate the complaints. When he had made his investigations, the complaints could be dealt with within the service and without any breach of security.
Our most valuable and precious possession is personal liberty. I would not in any way advocate that anything should be done by the House in the Bill or in any other Bill that might in any way taint what Edward Gibbon calledthe image of liberty in which we delight".I believe that the Bill is a measure that we can rely upon to sustain our liberty, to benefit our liberty and to improve our hopes of keeping that liberty in the future.
§ Mr. Merlyn Rees (Morley and Leeds, South)
All Home Secretaries have to maintain a balance between the need to maintain the security of the state and the need to maintain and preserve civil liberties. That is sometimes a very difficult task, and judgments have to be made. Whatever the rules may state, and whatever may be laid down in White Papers, there comes a time when one has to think hard before one allows, or does not allow, something to happen.
I declare an interest in that as Home Secretary and as Secretary of State for Northern Ireland I authorised telephone tapping over a period of five years. I declare a further interest. Since March 1974, to varying degrees, I and my family have been protected by the special branch against terrorist attack. I do not have to read about the activities of the special branch, because I meet members of the special branch frequently. I am not naive enough to believe that they never do anything wrong, but I am closely in touch with them.
I have also received valuable advice from a small number of people in MI5 who gave me information about the work of terrorists, particularly in one part of the world and eventually in many parts of the world. The advice and information that they gave me has served the nation well, despite the fact that, on many occasions, we did not prevent terrorist activities. Had we done so, people would 179 not have been killed in shopping precincts and elsewhere in this country. That small group of officers are friends of mine. I have learned to respect them. They are certainly not stupid reactionaries.
Home Secretaries have a difficult time answering direct questions about telephone tapping. It is easy to say no, but if one says no, when the time comes, why should one not say yes? I should like to comment on some of the allegations that have been made. On the last day of the Labour Government in 1979, after my right hon. Friend the Member for Cardiff, South and Penarth (Mr. Callaghan) had conceded defeat, I went back to the Home Office and signed some interception warrants. That was necessary, because there was at that time no successor. They had to be done that evening. I think that I signed four and wrote on them that they had to be looked at by the new Home Secretary when he was appointed. The job of Home Secretary is not like any other in government. He is alone. He sometimes gets in touch with the Prime Minister, but it is not a Cabinet or Cabinet Sub-Committee decision.
When Lord Bridge ruled that no warrant for interception had been issued in contravention of the rules, I was not the slightest bit surprised, as I do not believe that that has been done by any Home Secretary. In any event, the checks and balances make it impossible. However, subjective considerations come into play when decisions are made.
§ Mr. Douglas Hogg
The right hon. Gentleman has great experience, and he might be able to help the House in an unusual way. According to clause 2, a warrant can be issued if the Home Secretary thinks that it is necessary for national security or economic well-being. Does the right hon. Gentleman think that it is possible to formulate the criteria more narrowly and precisely or should they be left broadly drawn?
§ Mr. Rees
I had intended to make some suggestions about that later. I think that they are drawn too broadly. To put it another way, they are drawn more broadly than the rules that emerged from White Papers of the past.
The Bill has arisen out of the Malone case. In March 1979, I announced that I was setting in train a study of the implications of the case. The process has taken six years, although I understand that other things have occurred. The judge ruled that telephone tapping could be done lawfully because there was nothing to make it unlawful. All Home Secretaries used the prerogative. But the judge also argued that telephone tapping was a subject that cried out for legislation. I agree. Mr. Malone appealed to the European Court of Human Rights which, in 1982, issued an opinion in favour of him and ruled that the action had been in breach of article 8 of the convention for the protection of human rights and fundamental freedoms.
It is important to recall what article 8 says:Everyone has the right to respect for his private and family life, his home and his correspondence.That takes us into privacy legislation and the like. Article 8 continues:There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security"—that is pretty broad—public safety or the economic well-being of the country".180 I have never authorised a telephone tap in the interests of the economic well-being of the country, and nor has anyone else as Home Secretary. That is new. By absorbing what the European court says, we have taken on a new concept. Article 8 continues:for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.That is what the Government have put in the Bill. They have taken the words of the European court. Much as I respect the European court, such a general statement is not good enough for legislation.
§ Mr. Ivan Lawrence (Burton)
Is the right hon. Gentleman right in saying that the economic power is new? Has it not been operated by the Foreign Secretary, though perhaps not by the Home Secretary?
§ Mr. Rees
I said by a Home Secretary. I was careful to say that, although I did not know until I checked with my right hon. Friend the Member for Glasgow, Govan (Mr. Milian) that apparently it had been authorised by the Foreign Secretary. It was never done by me.
I agree in principle that we should give statutory approval to telephone tapping. It is vital that we be able to add to our information to apprehend certain categories of people. However, it is not the prime mover or the main means of getting information. When I was asked for a telephone tap, those asking had sheets of paper giving information such as that there would be a robbery on Saturday, that armed men were involved and the rest. They had everything except information about where it would happen. I can remember telling people with whom I had agreed a telephone tap to come back on Monday morning and tell me what they had found out. It would be foolish to imagine that telephone tapping is the main source of information.
We hear of informers in Northern Ireland and it is a means of getting information. This is also the case in the criminal world. Of course, telephone tapping is important in regard to terrorism. I had better be careful what I say. A foreign terrorist might for example, come here through Heathrow and I might be told that he is part of an international terrorist gang. Telephone tapping in this type of case might be the only way in which to get information.
There has been much talk about Left-wing subversives because of a recent television programme. In espionage, it is rarely that way round. I was always surprised to find out who it was alleged was involved in espionage. On the whole, they are not from my constituency or the village in which I was born — they come from a different walk of life. However, I must admit that I often used to make snide remarks about that until I realised that many people that I knew never had the opportunity.
There is an important point to make about drugs and through a tap eventually sewing up a drugs case and gaining the information to lock up people for a long time. A television film might show a policeman on a bike suddenly arriving at a seaside resort in Cornwall, and the media describe him as a clever policeman because he arrived at the right moment. However, a lot of thought was given to the exercise before the policeman arrived.
I believe in parliamentary democracy. This House believes in parliamentary democracy. Those who want to overturn parliamentary democracy by revolutionary means are, in my view, subversives. However, many people who call themselves revolutionaries could not overturn a rice 181 pudding. I was born into the Labour movement; I did not come to it after studying PPE or modern greats at Oxford. During my 50 years in the Labour movement I have seen the paper revolutionaries come and go and become good Catholics and good members of the Conservative party in less than 20 or 30 years.
§ Mr. Dalyell
While my right hon. Friend is in such an expansive mood, could he give us a judgment whether, when he occupied the high office of Home Secretary, he thought that he was told all that he needed to know by the security forces? I ask that as an interrogative question.
§ Mr. Rees
I was always told what I wanted or needed to know about telephone tapping. In Northern Ireland, I knew a devil of a lot more about a great many people. I locked up 600 people. Two or three of us would talk into the long hours of the night; we talked as friends and as people who knew a great deal. To this day, when I read what certain people now say I give a wry grin.
When I was Home Secretary, I could not possibly know everything that was happening in MI5 — not because anyone was trying to fool me, but because it is the nature of the system. However, I am not saying that because of that I was not responsible — I accepted full responsibility for anything that was done. But it was impossible to know all.
§ Mr. D. N. Campbell-Savours (Workington)
Did my right hon. Friend note the source quoted in The Sunday Times, which in reference to the Home Secretary's effectiveness said:He hasn't got a clue what is going on … If he comes round, you lock away any sensitive files and set up a display file specially for him to look at—a spoof file on some imaginary subversive with lots of exciting material in it. He's not going to know any better.Hon. Members might think that stupid, but my constituents and millions of people are concerned that the Home Secretary does not know what is going on. My right hon. Friend is a former Home Secretary. Does he accept that anything in that newspaper comment is true?
§ Mr. Rees
Quite frankly, I do not. Perhaps someone is preparing false files, I do not know. I simply repeat that it is impossible for a Home Secretary, dealing with all the various aspects of a wide Department, even to pretend that he knows all that is going on in MI5.
In any aspect of the security services, the Home Secretary must trust the man in charge. Even if the Bill were 600 pages long, with a list of rules and regulations as long as my arm, ultimately everything depends on the trust placed in the man in charge of the organisation. There is no way around that.
I am mainly concerned about clause 2. I certainly could not support economic sanctions, even though the Bill refers only to economic information from abroad. We may talk about subversives, but there are those who indulge in financial deals across the exchanges who do more harm to this country than many people who call themselves subversives. The Bill refers to deals outside this country, and that concerns me because I do not understand what it means. Does it mean that if a firm in this country has headquarters in New York, it is all right to try to find out what is going on in that company? [AN HON. MEMBER: "The Isle of Man"] I had responsibility for the Isle of Man when I was Home Secretary, but I did not know too much about that, either.
182 There are already rules covering phone tapping. None of the rules in the White Papers led me to tap a phone to gain economic information. That would be wrong and outside the rules. No Home Secretary of any party would sign a warrant to get economic information from a firm, trade union or anyody else.
In the recent film on television, allegation was made about the fire service dispute, so I checked on the steps that I took. When representatives from the union told me that there was to be a strike, I said that I would have to have green goddesses available. The union co-operated fully. The last thing that it wanted was the middle of London to burn. Why on earth would anyone want to tap the union's telephones? Such an allegation is made more in paranoia than anything else.
Subversion is a subjective definition, and I have already said that parliamentary democracy weighs with me. I have to ask such questions as whether there is contact with a foreign embassy, whether certain people are anything more than windy revolutionaries and whether there is any talk of arms. If there is any danger of this, there is subversion.
The Guardian took me to to task recently because, apparently — I never remember these things — during a short debate someone asked me who determined the meaning of subversion. I said that I did. The Guardian said that that was a delusion of grandeur. It was not — it must be a judgment for the Home Secretary to make.
Every hon. Member is affected by his experiences. I first entered politics in the 1930s, and I have never forgotten what happened in Germany. In the early days, as a member of the Labour League of Youth, I was in politics when others who stayed on were only in the school debating society. I was concerned when I saw the flicker of civil liberties going out in Germany. It came from a National Socialist party, and I learned that not everyone who says, "Lord, lord, I am a Socialist," is necessarily a Socialist.
Harold Laski used to tell us that there are 999 definitions. I knew the only one that mattered to me: that one would get power through the ballot box, despite all the difficulties and problems that are involved. I take up the point that was made earlier: when the Prime Minister referred to "the enemy within" was that a subjective definition of subversion? I say it is a subjective view. I was asked whether there needs to be a sharper definition. However sharp that definition may be, a subjective evaluation has eventually to be made.
Another problem arises from the enormous number of foreign agents who come to London. Some large countries seem to me to deal with their unemployment problem by having a large secret service. Their foreign agents talk to unsuspecting people in this country and report back. This is picked up by somebody else and the next thing is that a file is opened on the person because it is thought that he is in contact with a foreign agent. That is why I never go to foreign embassies if I can avoid it. It seems to me that they earn a living by building up out of nothing the importance of those to whom they speak. It causes trouble. I hope that it has never caused trouble for me, but I know that it has caused trouble for other people.
On clause 2 and the rules with which it deals, may I put this point to the Home Secretary. The place to put the Maxwell Fyfe rules and the Birkett rules, suitably brought up to date, is in a schedule to the Bill. I believe that clause 2 ought to be a general clause, with a schedule to the Bill 183 containing the rules that I used to operate brought up to date. Any Home Secretary will have to look at those rules. I used to look at a list of my duties, under which I operated. I would be surprised to find how much a Home Secretary was responsible for. But clause 2 is not good enough as it stands. It needs to be refined. The subsection dealing with the economic well-being of the United Kingdom needs to be taken out completely. The details need to be put into a schedule to the Bill. Much discussion will have to take place, as the rules are brought up to date.
I did not understand what the former Home Secretary, the right hon. Member for Glasgow, Hillhead (Mr. Jenkins), meant when he said that the political aspect of the work ought to be dropped. I came across a political problem once. The National Front used to parade in my constituency with the red hand flag of Ulster. It had a link with the Ulster Defence Association. A member of the National Front, with a Conservative councillor, was supplying arms to paramilitary groups in Northern Ireland. They were arrested. They regarded themselves as a political organisation. Although one may say that politics must not enter into it, when one tries to define what is meant by politics it is not easy to do so. I read that in a Film there was a "plant" in a fascist party in Leeds. I knew nothing about it. I am very glad that there was. It may regard itself as a political organisation. I want everybody in this country to be able to stand up and put their views, whatever they may be. All I know is that black kids in Leeds were beaten up and that this political organisation was involved. I believe that such political activities need to be monitored, but that monitoring needs to be controlled. Clause 2 needs to be shorter, with the details spelt out in a schedule.
As for the allegations made in the film about the Campaign for Nuclear Disarmament, in December of last year I said in the House that I had never regarded CND as a subversive organisation. The fact that an organisation says things with which many people disagree does not make it a subversive organisation. CND cannot possibly be a subversive organisation. Many of those who live in my part of Yorkshire and disagree with my views on defence are members of CND. To say that they are subversives is stupid. Many of them are Christians. They are imbued with the same spirit as the members of the Peace Pledge Union of the 1930s. In no way could I regard them as subversives. As for the allegation regarding Shelter, I have never heard anything so daft. If the Communist party, for what it is worth these days, were to take over Shelter, I do not know that I would lose much sleep. I have doubts about the allegation.
As for the point made by my right hon. Friends the Members for Cardiff, South and Penarth and for Manchester, Gorton (Mr. Kaufman), I believe that members of MI5 should have the right to go to a tribunal on the question of telephone tapping. This is a telephone tapping Bill. If citizens in general can go to a tribunal, members of MI5 ought to be able to go to a tribunal.
Clause 4(1) reads:A warrant shall not be issued except—That is far too broad. I am told that certain senior offices are not really offices under the Crown. Anyway, I have 184 been stopped on the motorway and at the nearest police station I telephoned a deputy under-secretary or the permanent under-secretary and spoke to nobody else. The reference to a person holding office under the Crown debases the existing rules. Only a Home Secretary should issue such a warrant, nobody else, and, if necessary, via a senior civil servant. The clause is too vague. As for timing, my right hon. Friend the Member for Gorton is right. I have already revealed that one gives permission for a period of time. Some telephone taps continue for a long time. I do not intend to spell it out, even in this House. However, I imagine that every hon. Member knows what I am talking about. They are blanket tappings. They are not on individuals. However, even those blanket tappings were reviewed every six months. But six months, in general, is too long.
- (a) under the hand of the Secretary of State; or
- (b) in an urgent case, under the hand of a person holding office under the Crown".
There is a great deal to tidy up in the Bill. I welcome the fact that telephone tapping is to be put on a statutory basis. How could I say anything else? I cannot change my mind because I am in opposition. What had to be done was obvious. I ought not to say that one cannot change one's mind when in opposition, but I am not prepared to change my mind about telephone tapping. Nevertheless, the Bill needs to be substantially amended. I shall play my part in Committee. I am not being asked to vote against the Bill, but unless I receive assurances on the breadth of clause 2, I shall vote for the amendment.
I have read the script of the film that I watched last night on tape. I want to say two things about it. One of them has made me very angry, for personal reasons. An allegation was made about a man called Tommy Roberts who worked in the information office in Belfast. He had lived in this country for 20 years and worked in the Ulster Office. He then returned here. By the very nature of his office, the Home Secretary hardly knows anybody below a certain rank; his Department is so big. However, in Northern Ireland the Department is so small that I knew everybody. I knew Tommy Roberts. I remember that in August 1976 I asked Tommy Roberts and his wife Margaret what they were going to do. They said that they were going to march with the peace people down in Belfast and that they had come to collect my wife at the Castle to go with them. For the first time I had to say to my wife, "Please do not go."
Once the wife of the Secretary of State for Northern Ireland was seen marching with the peace people in Belfast the media would immediately say that the peace people were organised in the Castle. Northern Ireland politicians, with one or two exceptions, would have drawn exactly the same conclusion.
Tommy and Margaret Roberts were good people. They were going to go down to Belfast in the rain that day and make their little mark for peace in Northern Ireland. What do we get in the film? Tommy Roberts would not have known about telephone tapping of any sort. He would not have known the remotest thing about it. But what did the film say? The allegation that it made about telephone tapping and Tommy Roberts is complete rubbish. I have discussed it with my right hon. Friend the Member for Barnsley, Central (Mr. Mason) who succeeded me in Northern Ireland.
That would not be too bad, but what did the programme go on to say? It said that at a party Tommy Roberts was drunk and that he was "a close aide of Mr. Roy Mason". Clever stuff! It is said that he said, "I know you. We have got you taped," or, "We have got you tapped". He was taking the mickey, although the Northern Irish use a 185 different word. It was said, "Because he was drunk, I asked him again." Has anyone ever thought of Margaret Roberts? Tommy has been dead for five years. That was repeated again on the Sunday after the film by the scissors and paste journalists who regard their research as a matter of going to an old paper and cutting something out. It was rubbish. In the Elysian fields Tommy Roberts is having a good laugh and taking the mickey out of those journalistic Warriors in the Europa hotel, some of whom never budged an inch to get their information. However, some were excellent. I determined to speak today on behalf of Tommy Roberts. He was a good man whose name has been besmirched.
As far as I know, I have never met Harry Newton. According to the film, he was a Left-wing informer and a former member of the Communist party. A friend of mine, whom I would trust completely, and a close friend of Mr. Newton, told me that the people doing the film came to see him and he told them that he knew Harry Newton. They said that they had a lot of information for a film on MI5 which was dynamite and they wanted personal information on Mr. Newton because he had been a victim of surveillance by MI5. They did not tell him of the allegation that he had been an informer and they told him a lie to get the information. If a Minister did that on the Floor of the House there would be hell to pay. But that was done by a journalist, getting information out of a friend of mine who is on the Left of the Labour party by a long way, who was glad that there was to be an investigative television film, who thinks it incomprehensible that Harry was an MI5 agent for over 30 years. He told me that he still thought that it was a leg-pull.
The Secretary of State is not here. I appreciate that he cannot say anything about telephone tapping. Harry Newton is dead. But an allegation has been made by a journalist. I bet that they would be shouting to have it cleared up if that had come from the Secretary of State.
§ Mr. Winnick
If Miss Massiter were telling the truth and if what she stated on the film is the position—we know why she decided to give up the work—and if she made those allegations regarding Mr. Newton, what possible motive could she have if they were not true?
I do not know and who does in the House except perhaps the Home Secretary, if he has checked the files? If the position is as alleged by Miss Massiter it must be taken into consideration. If she was not telling the truth, what possible motive would she have for making those allegations on the film?
§ Mr. Rees
I do not know. All that I am concerned about is that it has been brought to my notice that a man's character has been besmirched. All I am saying is that it ought to be cleared up.
Let me make a general observation on the media. Quite properly, there is concern about the film. Quite correctly, there is concern about what MI5 does. But the media must think carefully about what they do as well. The other day The Guardian went on to say that Igot rid of Messrs. Agee and Hosenball on the basis of undisclosed and highly suspect security information.It could not possibly know. But that will appear again, on the scissors and paste basis, as people try, not very well, to emulate the Washington Post. The Guardian says: "Highly suspect." It goes on to say that in the ABC case the information came from the offices of the National 186 Council for Civil Liberties. That is rubbish too, but it will appear again. The responsibility of the media in that respect is suspect.
I do not need instruction on civil liberties from those who have no responsibility. I have often called in aid the Franks committee of 10 years ago. I remember that the press came to us and said that we need not worry about the Official Secrets Act. They said that they were responsible and would look after it. We said:The news media … have a public function as well as the Government and would act responsibly by refraining from any seriously damaging disclosures of official information.In those lovely words—I did not write them, but I can guess who did—the report said:It seemed to us that this second argument rested upon a number of premises of doubtful validity and we discussed it closely with the representatives of organisations holding such views who came to see us.The report went on:The constitutional responsibilities of the Government and Parliament for protecting the nation cannot be abdicated on the basis that a failure to exercise them will be made good by the responsible behaviour of others. The same degree of responsible behaviour is not, in any event, shown by those who may publish or communicate official information. Restraint in publication varies from one kind of publication to another.I read that because the Government, of whatever political persuasion, have a responsibility for secret information which cannot be bandied about.
The Bridge report dealt with one aspect of the current allegations on MI5. I am concerned about files on non-subversive organisations. I am concerned, if such is the case, about lack of co-operation between MI5 and special branch in certain areas. MI5 or the special branch has no role in narrow political surveillance. I have been very concerned about the setting up of DS19 in the Ministry of Defence. It is not the function of the Ministry of Defence, whether on the decision of the Minister or not, to be a political Department. If the Government want to get at CND, they should set up a department in the Tory Central Office. With DS19 we see what happens. Someone could ring up and say that he was head of DS 19, and ask for some information. There would be two official Departments talking to each other. It was wrong. If my right hon. Friend had become Prime Minister after 1979 and had set up a political department in the Ministry of Defence, the media criticism would not have stopped. DS19 was the wrong thing to set up and it needs to be looked into. These rules should be included in the schedule. I do not want a Minister of Security. That would be dangerous. There is apparently to be a new head from outside. We did that in 1978. That is a useful thing to do from time to time.
What has been said about the setting up of a Privy Councillors' committee probably will not wash. The last Franks committee saw everything and reported truthfully. Indeed, I signed truthfully, or I would not have done so. People said that there was a cover-up. But whatever Privy Councillors do, people will say that there has been a cover-up.
Nevertheless, there is a lot of information that cannot be slung around in the House or in Committee—
§ Mr. Rees
The committee dealt with a subject called the Falklands. However, I still suggest that there should be a committee of Privy Councillors to look at the rules. The Government should give an assurance that before 187 reaching clause 2, such a committee will have a chance to provide a new set of rules. We would need to have a look at a schedule that is far tighter than the clause.
The same group could look annually at a report from the head of the secret service. It would have to report to the Prime Minister and Parliament upon matters such as files, surveillance and so on. The Home Secretary published the rules on surveillance in December. I have with me the statement on surveillance, and it is far more important than telephone tapping. We are moving out of the horse and buggy age. However, I believe that this type of surveillance should be covered by a separate Bill, as the subject needs to be given much more consideration.
As a first step, we should ensure that telephone tapping is covered by statute. I shall play my part in Committee. As it is, the Bill is not suitable, but I could not vote against Second Reading for that reason. However, I shall certainly vote for the amendment unless we are assured that something will be done. This matter is important. An ex-Home Secretary cannot just join the ex-Home Secretaries club and say that there are no problems. Of course there are problems. In all walks of life there are changed values. We are operating in a different world from that of the 1930s, 1950s or 1960s. But it is no good crying about that. We had better look at the issues involved. After all, the House has a responsibility.
Those of my right hon. Friends who say that something must be done are not being unpatriotic. They are doing what hon. Members have done many times before. They are asking awkward questions. I might not like some of the questions and I might be glad that I am not a member of the Government and having to deal with them. But those questions must be answered. This country must be superior to all other countries in this respect. It is a good country that asks questions. The questions have now been asked, and it is up to the Home Secretary and the Government to respond.
§ Sir Anthony Kershaw (Stroud)
The right hon. Member for Morley and Leeds, South (Mr. Rees) made a most compendious speech, which will greatly benefit the House. He drew on his experience and the wisdom that he has accumulated over the years, and the House should be grateful for what he said.
I believe that the surveillance of those who feel little or no obligation to obey the law is both justifiable and desirable. Of course, as the right hon. Gentleman said, the vast majority of cases involve criminal offences to do with robberies, drugs, and so on. But there are a few cases that are pursued more in the interests of the state, and it is only right that they should be looked at.
There is one body, CND, which seems to think that it falls into some sort of special category and which resents such security activity more than most people, and has said so in a letter to me. That body maintains that CND merely seeks to change the legislative process by legitimate, obvious and democratic means. It is its right to do that, and no one can possibly carp about that, or criticise CND for it.
However, one is entitled to ask, if such people have nothing reprehensible to hide, why they are so sensitive about phone tapping, especially when they spend quite a lot of their time upbraiding the Government for their 188 secretiveness. But no one can overlook the fact that some members of CND have broken the law or have condoned those who have done so. Nobody denies that a high proportion of the CND council are politically to the Left, or that there are some Communists and Trotskyists whose loyalty to this country cannot necessarily be assumed.
In those circumstances, it would be a breach of duty in this age, in which subversion and terrorism have taken the place of open war, if my right hon. and learned Friend the Home Secretary did not take reasonable precautions against such people in order to defend the state. I commend him, and his Labour predecessors, for the action that they have taken.
§ Mr. D. E. Thomas (Meirionnydd Nant Conwy)
In the hon. Gentleman's reference to senior members of CND, is he including Mr. John Cox?
§ Sir Anthony Kershaw
It is not fitting to give the names of particular people, but it has not been denied that there are five people on the council of CND who are of the extreme Left persuasion. There were eight members before the last election. However, they are perfectly entitled to their views.
I turn to another subject. I have been surprised by rumours in the press, presumably inspired by Whitehall, that the Prime Minister intends to shake up the security services by appointing from outside a sort of cleaner of the Augean stables. If those rumours were inspired by Whitehall—the newspapers were rather specific about that — it was surely an error of judgment on the Government's part. On the one hand, the Government, by this Bill and by their speeches, justify the activities of the security services — as we have seen today — and on the other they seem to allow snide suggestions to be made that the services have broken the rules. I hope that my hon. and learned Friend the Minister will say whether the Government consider that the security services should be cleaned up. If so, who will they appoint to do that?
Several suggestions have been made about the degree to which, and the methods by which, the security services should be supervised. Up until now, those ultimately responsible not only politically but adminstratively have been the Prime Minister and certain other Ministers. When things have gone wrong, commissions or individuals — drawn from among the great and the good — have sought to analyse what has happened. Their reports have necessarily been secret, but have been understood to say either that all was well, or that it shortly would be. Unfortunately, those assurances have been repeatedly falsified. After each debacle, there has been another separate inquiry. I do not think that the tribunal outlined in the Bill will do the job of supervising the way in which the security services do their job, that some sort of supervision is necessary can hardly be denied. Unless Parliament and the public are satisfied that the security services are acting correctly, they will not have confidence in them, and the security services will not have confidence in themselves.
As pressure on the security services, in the present climate of public opinion, is bound to increase, just as before the war, before the fallacies of Socialism were clear and the dangers of Fascism were obvious, there were found to be those whose loyalty broke, so, now, a long peace has lessened the fear of military defeat, and uneasiness about nuclear weapons may erode the loyalty of those in the security services.
189 I should like to contrast the treatment meted out to some of the major traitors since the war with the threats and actual prosecutions that have been made against some of the minor MI5 officers, whose motives in making their revelations were not to bring down but to strengthen this country's security. The sort of reassurance that we need about our security services will not be provided by the occasional Law Lord or tribunal. Such people can have no technical expertise about the ins and outs of security work. They do not command the extensive files and so on that have to be produced for a proper investigation.
I do not believe that such bodies have in the past got down to the nitty-gritty of the issues involved. We need someone, or a body of people, with inside knowledge. We need people from inside the security organisation.
I know that asking a policeman to watch another policeman has sometimes been criticised, but the merit of it is that only another policeman knows all the detail and where to look for weaknesses. The idea is not novel. Many public bodies have an inspectorate. The Foreign Office, the education system, the armed forces and the constabulary all have inspectorate systems. The existence of such a body would remind services, if they needed to be reminded, to remain within the guidelines and the law. If such a body had been in existence, it would have discovered or discounted the serious events which have so dramatically and squalidly been a feature of our intelligence services since the late 1940s.
§ Mr. Eldon Griffiths
Does my hon. Friend also regard as critical the proper screening of those who join the security services both at the beginning of and on many occasions throughout their careers?
§ Sir Anthony Kershaw
I have no doubt that that is important. It is clear that when Miss Massiter and Mr. Bettaney joined the service they were acceptable and that during their service they changed. Presumably, they had no one to complain to, their jobs were not supervised, and the secrecy which necessarily exists in such organisations meant that they worked on their own and suffered all sorts of pressures which those outside such services cannot easily recognise.
A body which is known constantly to keep an eye on details, on what is going on and on those who work in those services might have prevented both of those cases. The two people might have changed their minds or, if it had been detected that they wished to leave the service, they could have done so and the disasters would not have occurred.
I do not forget or deride the misgivings of patriotic law-abiding people who may fear that their privacy may be invaded. I hope that the Bill will reassure them by codifying the practice. However, they would be even more reassured if they knew that the security services were properly run according to the law. A permanent inspectorate along the lines that I have outlined would benefit both the service and the country.
§ Mr. Robert Maclennan (Caithness and Sutherland)
The hon. Member for Stroud (Sir. A. Kershaw) has turned the debate to the ways in which the Bill could be bettered, especially by considering the adequacy of the scrutiny provisions. He has helpfully moved the debate forward.
It is right to remind ourselves that the right of a citizen to respect for his private life, his home, family and 190 correspondence is a fundamental freedom, which we enjoy and which distinguishes democracy from dictatorships. For British people that fundamental right is guaranteed by article 8 of the European convention on human rights. However, it is not an unlimited right in the Convention.
I remind the House that the European Court spelt out the necessity for a limitation in a case which preceded the Malone case that has given rise to the Bill. In the Klass case in 1978 the court stated:Democratic societies nowadays find themselves threatened by highly sophisticated forms of espionage and terrorism, with the result that the state must be able in order effectively to counter such threats to undertake the secret surveillance of subversive elements operating within its jurisdiction. The Court has therefore to accept that the existence of some legislation granting powers of secret surveillance over mail, post and telecommunications is, under exceptional circumstances, necessary in a democratic society in the interests of national security and/or for the prevention of disorder or crime.If that right of surveillance is abused by a public authority or if it constitutes an unlimited discretion, it would undermine or even destroy our democracy on the grounds of defending it.
In the Malone case, the European court held against the British Government on the grounds that the protection from that abuse of power in the United Kingdom rested not in law but on administrative procedures which, although hallowed by Home Secretary after Home Secretary and Government after Government, were founded not on the expression of law but on the reiteration of administrative practice. For that reason, not for a sudden perception of the importance of statutory control, we have the Bill today.
It is noteworthy that when the Home Secretary introduced the Bill he never once referred to the Malone case or to the fact that as recently as 1981 his predecessor specifically ruled out any question of placing the control of abuse on a statutory basis.
§ Mr. Alex Carlile
Does my hon. Friend agree that a reason why the Home Secretary did not mention the Malone case was that the Bill palpably fails to meet the circumstances of the Malone case? Indeed, with the rules of evidence and questioning which are introduced in the Bill, Mr. Malone would never have found out that his telephone was tapped because his counsel could not have asked the question that led to that discovery.
§ Mr. Maclennan
I agree with my hon. and learned Friend. I intended to turn to that point.
Today's debate was preceded by a trailer—the public exchange about the revelations of Miss Massiter in the television programme that was made for Channel 4. The debate might have been different if that trailer had never been shown. It is common ground, at least among those who have had responsibility of Government, that surveillance is a necessary defence of the state, that there must be discretion, albeit within limits, and that it is appropriate for some form of scrutiny to take place. What has given the debate its sharpness and partisan character, which was shown in the speeches of the right hon. Member for Manchester, Gorton (Mr. Kaufman) and of the Home Secretary himself, is the fact that the Prime Minister and the Home Secretary reacted to the revelations, not with any recognition of the public anxiety, but in a partisan and inappropriate way. Whether the revelations are true or false, they are serious and should have been subjected to proper and searching scrutiny and examination.
191 The inquiry by Lord Bridge was inevitably incomplete because he was told to limit the scope to cases where authorisation had been or should have been given by Ministers. Certain matters were specifically ruled out and, therefore, Ministers cannot be surprised that their assertions are regarded as inadequate. The matter is not irrelevant to the provisions of the Bill. The Bill proposes that we should establish a commissioner with powers similar to those at present exercised by Lord Bridge. The adequacy of those provisions must be tested by our experience of how they have worked in practice. The fact that they have palpably not worked in the present case must make us question the adequacy of the provisions relating to the establishment of a commissioner.
A Bill is certainly needed, but this Bill falls far short of what is required to protect the public from abuse of the Secretary of State's discretionary power to order surveillance. The Home Secretary claimed three things for the Bill — first, that it does not widen the scope of existing powers. That is clearly not true. The Bill widens those powers extensively in several respects, including the duration of the warrant. He said that the Bill is clear and comprehensive. It must be said that it is neither; it is not clear with respect to the powers enjoyed by the tribunal. That is one of the most important defects of the Bill with which the Home Secretary will have to deal in Committee.
As I read the Bill, and as I believe all outside commentators have read it, the tribunal will not be allowed to examine whether the Secretary of State, in exercising his powers under clause 2, was right in his judgment that it was necessary to do so for the public interest as defined in clause 2. It will be impossible for the tribunal or anyone to stand over the Secretary of State's shoulder and question his subjective judgment that the issuance of the warrant was necessary. That is a crucial question in determining whether the tribunal has effective powers of scrutiny.
That leads me to the third test which the Secretary of State put forward.
§ Mr. Kevin Barron (Rother Valley)
Has the hon. Gentleman read schedule 1(4), which states:It shall be the duty of every person holding office under the Crown to disclose or give to the Tribunal such documents or information as they may require for the purpose of enabling them to carry out their functions under this Act"?Is that not wide enough to cover everyone who might have to give evidence and information to the tribunal?
§ Mr. Maclennan
I doubt whether the tribunal has powers of subpoena. They are certainly not spelt out. If it does not, it should have. The procedural limitations on the role of the tribunal vitiate its effectiveness and make it unlikely that it will be able to grant effective redress. The House cannot regard that lightly, because the European convention requires that effective redress be given to the individual. Article 13 mentions "effective domestic remedies", but I do not believe that the Bill provides effective remedies.
In exercising the right to order surveillance, it is inevitable that wide considerations will move the minds of Secretaries of State who have that power. That is why I am sceptical about at least two of the proposals that have been put forward as methods of controlling the exercise of the power. The first proposal, which is to follow the practice in the United States, is that the issuance of a 192 warrant will be acceptable only if it is done judicially—by reference to the courts. That is also provided in parts of the Police and Criminal Evidence Act 1984. I doubt whether, in practice, where matters of national security are concerned, a judge in this country would put himself in the shoes of a Minister and hold that the Minister's certificate was capable of being challenged in the courts. That is not an effective route.
The second possible route — it was mentioned by the right hon. Member for Morley and Leeds, South (Mr. Rees), who formerly held the high offices of Home Secretary and Secretary of State for Northern Ireland — is to narrow the grounds on which the power is exercised. I am somewhat sceptical about that, too. The language of the European Convention, which is incorporated in clause 2, is extremely broad. It may not represent the practice of the right hon. Gentleman or other Ministers who have authorised surveillance, but it is probably necessary that it be broad to encompass the circumstances in which it would be proper for a Minister to order surveillance. But it is proper to have those broad categories of powers only if they are qualified by something that is not in the Bill, but which is part of the international law of the European court: that the test of necessity should be applied in interpreting whether the broad powers have been used properly. That is not a subjective test like the one written into clause 2.
A central issue in the debate is that the Bill makes no provision for scrutinising whether a Secretary of State in issuing the warrant acted proportionately to the end to be achieved and whether the interference was necessary to achieve the intended objective. That test must be written into the Bill, and the power of objective scrutiny must be given to the tribunal and to the commissioner if we are to rely on the third and proper route, to ensure that Ministers do not abuse their powers of telephone tapping and surveillance, which is the effective ex-post facto scrutiny of what has happened. It is unreasonable to seek to fetter the discretion of a Minister who must deal with great issues of state, including the threats of terrorism and serious crime, and threats to the economic well-being of the country, by saying in advance that he can operate only in certain narrow categories of circumstances. But we must have a guarantee that, after the event, his actions can be examined objectively.
How can that best be done? Not, in my view, by the strange provisions of the Bill: establishing by letters patent —in other words, on the say-so of the Prime Minister—a tribunal which may hear complaints from those who, by chance, suspect that their telephones have been interfered with. It is proposed to ask five lawyers to join the tribunal. I doubt whether that can be regarded as an appropriate organisation.
When considering what is appropriate, it is sensible to examine what has happened in other countries. I draw the Government's attention to the experience in the Federal Republic of Germany, which was approved by the European Court of Human Rights in the Klass case. In Germany, two bodies are responsible for scrutinising surveillance powers. The first is a parliamentary body drawn from the Bundestag in proportion to the representation of political parties, which represents the senior voices of the West German parliament. That body in turn appoints the equivalent of the commissioner proposed in the Bill. The Federal Government do not themselves appoint a commissioner, as would happen here 193 if the Bill became law. In Germany, a man of high judicial office assisted by two lay assessors is empowered by parliamentary appointment to investigate the complaints of individuals, that they have been subjected to unjustifiable interception. I realise that systems are different and that our parliamentary system of scrutiny, of ministerial discretions has grown up quite differently from that of the Federal German Republic, and the two experiences are not wholly interchangeable. However, I believe that there is merit in considering a system of external scrutiny which is established by Members of Parliament, although answerable to the Prime Minister and to members of the Government. I commend that procedure to the House for further deliberation in Committee.
§ Mr. James Callaghan (Cardiff, South and Penarth)
I fully agree with the last sentiment of the hon. Member for Caithness and Sutherland (Mr. Maclennan). I do not intend to take up much time in view of the wide-ranging and powerful speech made by my right hon. Friend the Member for Morley and Leeds, South (Mr. Rees).
The debate raises in an old form the never-ending conflicting questions of security and civil liberty, or security versus civil liberty, and accountability and secrecy, or accountability versus secrecy. The job of the House is to try to strike the right balance between the two, and Ministers must be constantly called to account in the exercise of responsibilities in these matters. There is no ideal answer. It is a question of drawing a balance between the two conflicting sets of questions.
I believe that when the Bill is on the statute book, for whatever reason it was introduced, much responsibility will still attach to the Home Secretary and to the director of MI5 for the way in which it is operated, and Parliament will never be able wholly to call either of them to account. On balance, the statute, I think, will be a help.
The Home Secretary made some play about the fact that he is introducing the Bill and that the Labour Government had not done so. The right hon. and learned Gentleman knows the reasons for that, and I shall not go into them.
I take the view that the fact that we are making unauthorised telephone tapping a criminal offence must of itself be a gain. If any officer in MI5 has been minded to tap a telephone, up to this moment, if it were known, I assume that he has been subjected only to some disciplinary procedures. From now on, he will be committing a criminal offence and can be subjected to a severe fine or on indictment to a period of imprisonment. That must be a gain, and I do not think that it is possible to say otherwise.
Likewise, with all the defects of the tribunal and the commissioner, they are a long-stop which I believe will be of some benefit. I do not think that in any way they solve the great problems outlined in the first part of my speech. They are a long-stop and, therefore, are themselves of some value.
I do not regard the Bill, however, as being of supreme value — nor, I suppose, does the Home Secretary. Indeed, my guess is that by the time we reach Third Reading he will be very sorry that he has had to introduce the Bill because the number of amendments that can and will be attempted to be written into such a Bill are manifold.
The Bill is an attempt to legislate for something that hitherto has been exercised by the Home Secretary in my 194 view with responsibility, with care and with due recognition of the conflict between civil liberty and security and between accountability and secrecy. Therefore, I feel that in this, as in other fields, an attempt to legislate will involve the Home Secretary—not that I should weep any tears about it — in a tremendous problem by the time that he has finished.
I wish to make one or two comments about certain provisions of the Bill. First, I believe that there would be an advantage — because, in my judgment, Ministers should not get too intimately concerned with the affairs of MI5 — in having some independent discussion between the head of MI5 and a group of outsiders, whom I will not define more closely than that at present, about the objectives, targets and priorities of MI5 from time to time and, indeed, fairly regularly. After all, although there is a great deal of fantasising about it, MI5 at present has a limited number of people at its disposal. The idea that thousands of people are wandering round gathering information is absurd. There is a limited number and in my experience — although I agree that it is now nearly 20 years since I was Home Secretary, and the practice may have changed — it is the director of MI5 who broadly decides the targets, priorities and objectives. He may be the most estimable man in the world, but for him to act on his own, or at least in concert with his senior officials, all of them in a rather enclosed society, is not to my mind the best way to aim at and secure the right targets or, indeed, to determine the correct priorities.
It is said in the film, of which I have read the transcript, that the CND was first made a subject of surveillance—not of interception, according to the film — and then in 1981 it was taken out. I assume that that was done on the judgment of the director of MI5, if the statement in the film is correct. I think that there is a great deal to be said for having a group of people with a broader understanding of the ebb and flow of political activity in the country who can at regular intervals discuss with the director of MI5 why he has chosen certain objectives, why he has decided that one matter should be a priority rather than another and why he is concentrating on certain areas. That could only be of value to his work. In my judgment, it might present a better balanced picture to the director of MI5 of what is necessary.
I am not speaking about the security field directly — espionage, the IRA, international terrorism and other such areas — although obviously there might be value in discussions on whether it is right to place a degree of priority on international terrorism as against the IRA, or on the IRA as against some other kind of subversion. I am talking about what the right hon. Member for Glasgow, Hillhead (Mr. Jenkins) referred to earlier today as political activities — the position of the Communist party, the danger of the Communist party. For example, assuming that the Communist party is targeted on the ground that it wishes to overturn parliamentary government in the country, would it be right to target it rather than the Workers' Revolutionary party or some other party which is attempting to subvert the state by overthrowing parliamentary government?
I am sure that the director of MI5 has his views about these matters, but in my view it would be wholesome and healthy if there were others with a political judgment to bring to bear — not, I think, judges or Law Lords, but people with some experience of politics, and I guess that 195 some could be found. Such people could have discussions not only with the director of MI5 but with the Prime Minister or, indeed, the Home Secretary.
Although the Bill is not directly concerned with this aspect of the matter but is concerned, as I recognise and said in an earlier intervention, with interception in the broadest sense, the issues that have been raised as a result of the Bill and the things that have been said demand that public confidence should be satisfied. I believe that there is something to be said for the idea that I have put forward.
I think that there is a case for dissatisfied officers having another outlet apart from the director of MI5. I heard what the Home Secretary said, and I fully recognise that it is their job, if they are dissatisfied on certain matters, to go to the director. We have seen two cases recently, if not three. Two cases were mentioned in the film, there is the case of Mr. Bettaney and there have been others. In these cases, the people who have been concerned have been unable to find a suitable outlet for their disquiet.
The security services are essential and nothing that I am saying is intended to derogate in one jot or tittle from their responsibilities or morale. Rather, my remarks are intended to make it easier for them to operate, with the full assent of the people. It is important for officers who find themselves operating in a semi-political field and who are dissatisfied to have a further opportunity to consult, and that is why I suggested the commissioner. I appreciate the Home Secretary's objection to that suggestion, but he should consider some other way of meeting what has become a problem in this area. It must have adversely affected the morale of MI5 to have had the two recent cases.
I thought that the suggestion of the hon. Member for Stroud (Sir A. Kershaw) of an inspectorate was going along the path that might be traversed. How it should be devised must be a matter for close consideration and I would not think of suggesting a final answer now. The Home Secretary rather ruled out my suggestion, and I am not sure whether he was in his place to hear the suggestion of the hon. Member for Stroud. Suffice it to say that a problem exists and that it must receive close consideration.
The Bill represents an improvement but not a solution. Indeed, I doubt whether there ever will be a solution. Even when the measure is passed, everything will finally come back to the discretion of the Home Secretary and the integrity with which he discharges his task. There is no need to doubt that integrity in any Home Secretary, past, present or future. The Home Secretary has a difficult task to perform. He should not interfere too closely in the affairs of MI5.
Party politicians, even when Home Secretaries, can misuse information, although I do not believe that that has been the case. However, I agree with my right hon. Friend the Member for Morley and Leeds, South that it was a grave error on the part of the Government, in setting up DS19, to try, if they did, to use information gained by MI5 for their own purposes in combating CND.
That, if it happened, was going beyond the proper remit and ambit of an exchange of information. I hope that it will not happen again, if it happened then, and I am glad that the unit has been wound up.
The Bill represents a slight advantage. It will introduce some elements of safeguard in that the tapping of a 196 telephone without a warrant will be a crime. I repeat, however, that the most important safeguards that we have at the end of the day are the integrity of the Home Secretary and the knowledge, understanding and firmness of principle of the director of MI5. They cannot be replaced by any statute, no matter what it might say.
If the Prime Minister decides to appoint someone from outside, that should not be taken as a slur on MI5, as the hon. Member for Stroud pointed out. It may be thought that there is no one from within who entirely fits the bill. We have had no hesitation in appointing people from outside to other occupations, and there is no reason why MI5 should be exempt in that respect.
It is important to maintain MI5's morale, which has been shaken by recent events. Our job is to strengthen its morale, but at the same time to ensure that neither its officers nor Government go beyond what we believe to be the correct balance between the security of the state and the civil liberty of our people. In the end, MI5 is about the civil liberty of our people. That must be protected. MI5 should not misjudge its remit. Nor should we hamper its activities.
§ 7.5 pm
§ Mr. Eldon Griffiths (Bury St. Edmunds)
The House will have been struck by the contrast between the speeches of the right hon. Member for Manchester, Gorton (Mr. Kaufman) — a clever, facile and secondhand speech — and those of the former Prime Minister, the right hon. Member for Cardiff, South and Penarth (Mr. Callaghan) and the right hon. Member for Morely and Leeds, South (Mr. Rees).
While the right hon. Member for Morley and Leeds, South was speaking, I heard a remark from below the Gangway opposite to the effect that the Home Secretary could be deceived. Hon. Members should remember that one can perhaps fool a weak Home Secretary about some things for much of the time and about many things for some of the time, but one cannot possibily fool a diligent Home Secretary about everything all the time.
I agree with the central point made by the right hon. Members for Cardiff, South and Penarth and for Morley and Leeds, South that, at the end of the day, this House must trust the Home Secretary. We have no alternative. He is accountable to Parliament and he must exercise his discretion maintaining the difficult balance between liberty and accountability, secrecy and freedom, and it is right that we should put on record that we have had good reason to trust all our Home Secretaries. I include in that the present Home Secretary. In trusting them and allowing them to perform their difficult task we thereby strength the morale of the security service, on which a great deal depends.
My interest in this matter has developed over about 25 years. I knew of Burgess and Maclean in Washington. I did not know when I met them that they were traitors. They were men of charm and high intakes of liquid. Subsequently, from time to time, though not closely, I also knew Kim Philby. I did not know then that he was a spy.
I was told subsequently by people in the American security service that a fourth man was spying in Britain and I pursued that matter closely, inquiring into it at the highest level of politics and security in this country. I was told that there was nothing in the story. In fact, we were wrong and the Americans were right. Anthony Blunt was the fourth man.
197 Since then I have followed these issues as closely as it is possible for an hon. Member to follow them—and as one who has links with the police service in Britain — and I have no doubt that at any time there is a persistent attempt to spy on this country, to sell its secrets and to subvert its freedom. The Bill must be seen against the background that we are facing, whether or not we like it, a continuing attack on our liberties by those who wish to destroy us.
I support the Bill, as one who at one time had his telephone tapped. I support the Bill because it will clarify the law, because it will regularise the procedures under which this disagreeable but necessary activity is to be allowed and because it will provide important and new safeguards.
Most of all, I support the Bill for the larger reason that it will help to tackle the threats to our society from terrorism; from trafficking in drugs, which is often used to finance terrorism; from the increasing problem of assassination, which is used as a method of achieving political change; and because there is a continuing risk from abroad to our democracy.
I have over the last three or four years been able to make some study of terrorism and I should like to indicate to the House one or two of the things that I have discovered. They may well be known to other hon. Members.
Looking simply at those acts in which terrorists have crossed international frontiers and used weapons, explosives or funds that originated in other countries, there have been, since 1970, 3,400 separate such incidents. These have included 1,800 that involved the use of explosives, more than 300 hijacks of aircraft, close to 200 kidnappings and perhaps 85 or 86 assassinations of political leaders or diplomats, the most conspicuous recently being the assassination of Indira Gandhi in India.
Among the heads of state who have been assassinated in the past 10 years are the President of Bangladesh, the head of state of Nigeria, the Presidents of Afghanistan, Yemen, South Korea and Liberia, and so on. Also, some 23 ambassadors have been assassinated in their posts.
The worst feature of terrorism almost certainly is bombing. Bombs are easy to make and can be and are planted without the terrorist himself running any risk of detection. What happened at the Grand hotel in Brighton is clear enough evidence of this, and the same goes for the majority of the 8,000 or more bombings that have taken place since 1969.
The hijacking of aircraft comes second in the league table of terrorist incidents. I have here a record of some 300 aircraft hijacks and, despite the relative success that we have had over the past 10 years in reducing the incidence of hijacking of aircraft through new surveillance systems, including the telephone tap, terrorists now have found a way round these techniques.
Two recent incidents—in both of which the bags had been thoroughly examined before the passengers boarded the aircraft but nevertheless hijacks took place — were founded on the simple fact that the terrorists had been able to carry on board their so-called duty-free bottles of liquid. In fact, those bottles contained in one case petrol and in the other diesel oil. They were mixed in the lavatory, an appropriate wick was put in and the terrorists then had Molotov cocktails. They doused some of the passengers with petrol, walked up and down with a lighted copy of a newspaper, and by that act they were able to have their own way. Hijacking is still a serious matter.
198 So, too, is kidnapping. About 1,800 people have been kidnapped for political purposes in the past five years. And so the problem goes on.
As the terrorists develop their onslaught on civilised society, two other developments can be seen. First, their technology improves. Secondly, their international cooperation increases all the time. The rifle that killed President Kennedy was fired from a distance of 200 paces. That meant that the area of search for the police and security people was perhaps 1 square mile. Today there are available to terrorists through the arsenals of both the Warsaw Pact and NATO precision guided missiles which can be fired from a stand-off position of some three or four miles. They will literally go round corners and they have a 90 per cent. guarantee of killing. The consequence of that advance in technology is that the search area which the security services must clear when guarding against such an attack—at the inauguration of a president or at the Cenotaph in Whitehall — has been very greatly increased.
§ Mr. Griffiths
No, not for the moment.
The dilemma that I am putting to the House is this. Technology is assisting the terrorist and making more difficult every day the counter-efforts of the security services. That is precisely why it would be madness to seek to take away from the security services the technology of telephone surveillance in trying to prevent the murders, bombings and assassinations that threaten our society. It is in that light that I wish to refute the murmurs and, indeed, the comments that I have heard in the House and read in the press that it is totally wrong to permit, or even to regularise, the tapping of telephones. The issue is simply how—
§ Mr. John McWilliam (Blaydon)
On a point of order, Mr. Deputy Speaker. Is it in order for an hon. Gentleman to accuse hon. Members of the Opposition of not wishing to legalise telephone tapping when I successfully tabled an amendment in Committee to the British Telecommunications Bill in 1981, supported by hon. Members on both sides?
Mr. Deputy Speaker
Order. I am sure that the hon. Gentleman knows that that is a point of information, not a point of order for me.
§ Mr. Griffiths
I turn now to the Bill. My main concern is whether, by its complexity, it might hobble the security service. I have listened very carefully to what has been said. I certainly go along with what the right hon. Member for Cardiff, South and Penarth said about the need for the director of MI5 to have access from time to time to some other body for advice, for an incestuous or even monastic quality can develop in that organisation. The idea of an inspectorate put forward by my hon. Friend the Member for Stroud (Sir A. Kershaw) should be considered very carefully by the Government.
What I find attractive about this Bill is that for the first time it makes it illegal for anybody improperly to intercept communications in the public system. It is something of a surprise to discover that there has never before been such an offence of general application in our law. Postmen and the staff of public telecommunication systems have long been liable to prosecution for improper interception, but until today there has been no specific proposal for the 199 statute book to contain a single, comprehensive offence applying to everybody irrespective of who he is or who he works for. This Bill now provides that, and I welcome it.
Secondly, the legislation sets out the grounds on which interception can be authorised. It is surprising that the statute book has never before set out these grounds. The Bill lays down the form in which warrants must be issued, how they must be handled and when they must be reexamined if they are not to lapse. It ensures that all decisions to issue warrants must be, as they always have been, personal to the Secretary of State. There can be no delegating and no passing of the buck.
Thirdly, the Bill establishes entirely new safeguards. These are a crucial element in creating the confidence that the public needs to feel whenever we enact legislation of this kind. The tribunal not only has the ability to adjudicate on decisions taken by the Secretary of State but can also offer means of redress. It can, if it thinks fit, quash the warrant in question and award compensation against the Secretary of State.
§ Mr. Griffiths
Indeed it is. I am glad to have the hon. Gentleman's support. That is a real advance and I should have hoped that the Opposition, in those circumstances, would welcome the Bill instead of seeking to nit-pick it to death.
§ Mr. Griffiths
That is one way of putting it. No doubt the hon. Gentleman will make his point later.
I should like to conclude with this general point.There are continuous, organised and dangerous efforts to spy out the secrets of the state. Similar organised and continuous efforts are made to spread subversion and to penetrate the apparatus of the Government and work of high security.Those are the words of the Birkett report, under which successive Governments have operated. Against the background of the crime, violence, terrorism and assassination that we see today, I do not think that anyone can doubt that those words of Lord Birkett in 1957 are even more applicable today.
The point that the Home Secretary had to make bears repeating to the House. 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 more than £40 million worth of stolen property and to seize drugs valued at over £50 million as a result of interception. Anyone who knows the situation in Northern Ireland would agree that if those have been the fruits of authorised interception in England and Wales, many lives have been saved and many terrorist incidents have been prevented by the proper use of interception in Northern Ireland.
I hope very much that in Committee there will be some amendments to the Bill. One amendment that I would support, if I had the misfortune to serve on the Committee—and, frankly I shall do my utmost to avoid it because the Home Secretary may regret—
§ Mr. Griffiths
In that case, I shall have opportunity to make a contribution in Committee, although I do not believe that that decision has been taken yet, and I doubt that the Bill will be taken on the Floor.
Nevertheless there will be some amendments and one that I would support is the clearing up of the economic dimension—I am not sure that I know what that means — and the clearing up of clause 3, as well as the question whether the members of the tribunal will be able to bullyrag practitioners while they are on the job. Restrospection is one thing. Involving themselves in the day-to-day workings of the service while it is conducting investigations is a very different matter.
I detected in the Opposition — not throughout the Opposition, as I know that there are different views and wide experience on the matter — a collective sigh of relief when they came to this Bill. At long last they can get into the open ground of attacking our so-called secret police. They spent much of the past year attacking the police over the miners' strike for being a paramilitary force, a national force, a Conservative party force and a brutal force. All those allegations have been shown not to be true. But, now that the miners' strike has come to an end, thanks in large measure to the actions of the police in upholding civil liberty, the Opposition cannot wait to create the new demonology of something called the secret police and telephone tappers.
I understand the politics of why they are doing that. However, I hope that they will listen to the wisdom and experience of the former Home Secretary, the right hon. Member for Morley and Leeds, South and the former Prime Minister, the right hon. Member for Cardiff, South, and Penarth. Both spoke with knowledge, not prejudice.
§ Mr. Ian Mikardo (Bow and Poplar)
I always try to begin any speech by following the usual practice of the courtesy of the House by referring to the speech of the person who spoke before me. However, on this occasion I cannot comment on the speech of the hon. Member for Bury St. Edmunds (Mr. Griffiths) because it consisted of nothing but what Mr. Punch used to call a glimpse of the obvious. There is no point in the hon. Gentleman holding forth about the necessity to use powers of invigilation, surveillance and interception against terrorists, kidnappers, assassins, drug pushers and people undertaking other serious crimes because there is no dissent in any quarter of the House from the proposition that it is right to use all possible methods for dealing with such crimes and with any threat to the state from hostile forces outside the state. There is no argument about that.
The reason why the hon. Gentleman could not name a single one of the persons who he says have been opposing telephone tapping for any purposes whatever is that the whole lot of them are figments of his fevered imagination. We all admire the splendid job he does in earning the lolly that he gets from the Police Federation. Nobody wants to interfere with a chap, a working man, earning his living. So we are always very tolerant of him, and I shall therefore pass on without further comment.
The hon. Gentleman knows as well as I and every other Member of the House that the Bill has been introduced not because of the unhappy increase in the incidence of drug pushing, assassinations or aircraft hijacks. There is only one reason why the Government have brought in the Bill, and we all know it. It is absolutely clear. They have 201 reluctantly brought in the Bill only because they were compelled to do so by the condemnation of the European Court of Human Rights. Without that condemnation, we would not have the Bill. They have brought in a Bill that does the absolute minimum necessary to push aside that condemnation of the European court, instead of a Bill dealing seriously with the problem of safeguarding the rights of non-criminal citizens against the ever-increasing arbitrary powers of the state apparatus, which is the sort of Bill that they should have introduced.
It is pretty clear that the Home Secretary does not understand the problem at all. Whenever he is challenged on any aspect of this multifarious problem, he always falls back on the assertion that he has never acted improperly in authorising a warrant for a telephone tap. Recently, he got Lord Bridge to confirm that assertion. For my part, I do not need Lord Bridge's confirmation. I have never doubted for a moment that the right hon. and learned Gentleman and all his predecessors have always acted, in respect of the authorisation of telephone taps, with absolute and total probity.
The problem is not phone taps authorised by the Secretary of State; it is the very much larger number of phone taps that are made without any application for an authorisation, perhaps because it was known that an application might be refused by a Home Secretary acting properly. The much larger number of phone taps made without application for authorisation have absolutely nothing to do with serious crime or a threat from enemies of the state abroad. Telephone taps concerning those matters are applied for because the authorisation will be given. The ones that are done without authorisation are virtually by definition those that are not concerned with the security of the state or serious crime. If the Home Secretary does not know about that, he is very much alone and very much an innocent abroad.
Annex 2 of the White Paper shows that in 1984 there were 581 unauthorised taps. The number of people involved in the work is just over 400, so on average each of them did one telephone tap every nine months. That is not a high level of productivity for a Government who are always going on about the need to increase productivity. The most elementary arithmetic leads to the conclusion that 581 taps are only a small fraction of the total number of interceptions.
§ Mr. McWilliam
Will my hon. Friend reflect on the fact that the people making the taps are now employed by private enterprise? What does he think the attitude of private enterprise would be to that level of productivity compared to the attitude of the state by whom the people were employed previously?
§ Mr. Mikardo
That is a subject on which I hesitate to speak, because I have no authority so to do. I do not have enough knowledge to make a serious, authoritative comment on that question. I hope that my hon. Friend will catch your eye, Mr. Deputy Speaker, because many hon. Members, not on this side alone, are well aware that almost certainly he knows more about the technology of these matters than any other hon. Member. I am sure that his contribution to the proceedings on the Bill will be valuable.
The Home Secretary's ignorance of what is happening is exposed further when he keeps on telling us that no hon. Member is having his telephone tapped. When he says 202 that, he is saying something that he does not know. All he knows is that he has not authorised a tap on the telephone of any hon. Member, but there is, unhappily, good reason to believe that there is eavesdropping on some of our telephones. In his starry-eyed ignorance of what is going on all round him the Home Secretary reminds me forcibly of the man who for 19 years played the piano on the ground floor of a honky-tonk without finding out that the upstairs floor was a brothel.
The Home Secretary has told us that under the Bill unauthorised tapping will be a breach of the law. I suppose that that will help a bit, but hon. Members are wrong if they take that as total security for citizens. The security forces often behave as though they are above the law. They defy existing laws with impunity as, for example, when they break into a house or an office to plant a bug or to steal papers. They regard that as part of their normal day's business. If they are prepared to defy and violate present laws, why should anyone think that they will feel obliged to obey this law if and when we pass it?
§ Mr. Jonathan Sayeed (Bristol, East)
Will the hon. Gentleman cite some evidence for all the assertions he is making?
§ Mr. Mikardo
I have a great deal of evidence for what I am saying. I am prepared to give that evidence to a Minister. I have offered it and the offer has not been accepted. I have knowledge about the telephones of Members of Parliament being tapped.
§ Mr. Mikardo
I shall claim the same privilege as the Minister. I am not giving information in public about particular cases. If he has that right, so have I.
§ The Minister of State, Home Office (Mr. Giles Shaw)
The House has listened with fascination to the hon. Gentleman's allegation. He no doubt heard my right hon. and learned Friend the Home Secretary say that all the allegations that have been brought to his attention in relation to the unauthorised use of the powers of surveillance services have been examined. If the hon. Gentleman has such evidence, and would like to give it to a Minister, I should be delighted to receive it.
§ Mr. Mikardo
I shall be happy to tell the Minister of an occasion on which somehow an employers' organisation knew of the decision of a trade union about the bottom figure at which it would be prepared to settle in a wage negotiation. I have evidence of other breaches as well. If the Minister sends me an invitation to talk to him about these matters, I shall gladly accept it.
§ Mr. McWilliam
Perhaps I can help my hon. Friend. On page 161, of the now unavailable book "Operation Julie", the head of the operation, Inspector Dick Lee, explained how he avoided routine police channels and persuaded an unnamed organisation to tap a suspect's telephone. I put that on the record for my hon. Friend.
§ Mr. Mikardo
When the time comes, we shall deal with it. I promise hon. Members that I shall not run away from the challenge. I have never run away from a challenge in the years I have been in the House, and I will not do it now.
Another serious defect of the Bill is that it does nothing to protect people against interception of communications by means other than the post or the telephone. As I have 203 said, there are bugs put into houses and offices. Bugs are planted in motor cars and in hotel bedrooms. British and other west European business men going to do business in Moscow used to regale each other in the aeroplane on the way there with stories of the consequences of their hotel bedrooms in Moscow having had bugs planted in them. There are hordes of funny stories on the subject. We now know that hotel rooms in Great Britain are bugged as well. Direction-finding listening devices can be beamed into a room from a vehicle parked a couple of hundred of yards down the road.
The plain fact of the matter is that this country is rapidly falling victim to some of the practices of a police state. It is becoming increasingly difficult for us to deliver curtain lectures to other Governments about basket III of the Helsinki final act without being conscious of the mote and the beam. Let me illustrate that by pointing out some comparative examples. I have already mentioned phone tapping that takes place here, as it does in totalitarian countries, and the bugging of hotel bedrooms. There are other examples. In the Soviet Union any opposition to Government policy automatically ranks as subversion and can, therefore, be treated as a crime. Recently in Great Britain a Government representative and a judge both claimed that opposition to Government policy automatically ranked as subversion, and, therefore, could be treated as a crime. In the Soviet Union—
§ Mr. Mikardo
No, I am not giving way. I want to draw to a close. Other hon. Members want to speak. I hope that the hon. Gentleman will catch your eye, Mr. Deputy Speaker.
In the Soviet Union a man can be denied employment, and often is, in the public sector solely because of his political beliefs. In Great Britain a man can be denied employment in some parts of the public sector solely because of his political beliefs. I should have thought that Conservative Members would be as offended by all this as I am. I do not know why they seek to defend it.
In the Soviet Union a man can be convicted of a crime by a single judge on the basis of evidence given only by a bribed police informer. In one part of the United Kingdom, a man can be convicted of a crime by a single judge on the basis of evidence given only by a bribed police informer.
In the Soviet Union some completely innocent people are prevented from travelling outside their own gubernya. Recently, in Great Britain, some completely innocent people were prevented from travelling outside their own county.
In the Soviet Union some people cannot even get to their own homes without showing their identity cards. In one part of Great Britain, people will have difficulty getting to their homes without showing their identity cards.
In the Soviet Union restrictions on movement within, and out of, the country are applied discriminately against some ethnic groups. In the United Kingdom restrictions on movement into the country are applied discriminately against some ethnic groups
As my right hon. Friend the Member for Manchester, Gorton (Mr. Kaufman) reminded the House, in the Soviet Union, public servants who query Government policy can 204 be recommended for psychiatric examination. In Great Britain recently, at least two public servants who queried Government policy were recommended for psychiatric examination.
In the Soviet Union the Government withhold from the people any information that might show up their leaders in a bad light. Recently in Great Britain the Government have withheld from the people some information that might have shown up their leaders in a bad light.
In the Soviet Union politicians addressing their party conferences make use of information winkled out by the security snoopers. In Great Britain one Minister, addressing a gathering of members of his party, has made use of information winkled out by the security snoopers.
I have a final example. The Soviet Union has refused to sign the United Nations convention on torture. Great Britain has refused to sign the United Nations convention on torture.
We in Great Britain detest the suppression of human rights and civil liberties in the totalitarian countries, but increasingly we show our detestation of these practices by copying them. We have not yet reached the high level of tyranny that has been reached, for example, in South Africa, Chile or the Soviet Union, but we are learning fast and we are catching up fast. Great Britain has managed to get itself condemned by the European Court of Human Rights more times than any other country. I see that the hon. Member for Stafford (Mr. Cash) enjoys that. Perhaps he is proud of the fact.
We need a Bill to begin reversing that awful process instead of this pathetic and ineffective measure, which will do nothing to offset serious breaches in the rights of ordinary, decent non-criminal citizens.
§ Mr. Ivan Lawrence (Burton)
I always consider it a privilege to follow the hon. Member for Bow and Poplar (Mr. Mikardo) because he is a very senior Member of the House. He sits with me on the Foreign Affairs Select Committee and we have a fair bit in common on a number of issues. Therefore, it saddened me to hear him being so paranoid when he addressed the House on this subject. One gets the feeling that some hon. Members are upset that they are not considered important enough to have their telephones tapped. The hon. Member for Bow and Poplar said that Members of Parliament are having their telephones tapped, but when he was asked for evidence on this at this late hour he talked about employers bugging some trade unions. That has nothing to do with Members of Parliament.
There may be a lot of bugging. I have no doubt that as the methods that are cheaply available are far more widely developed and the electronic apparatus is improved, more and more people will engage in bugging. The first question whether the state is doing so, and the second whether the state can stop the activity without the need to resort to a police state. That itself would be counter-productive and undesirable as a means of monitoring what is happening elsewhere.
The hon. Member for Bow and Poplar read out an absurd list of comparisons between this country and the Soviet Union. I shall mention just three as the hon. Member was going so fast that I could not get them all down. He said that identity cards are being used here in the same way as they are used in the Soviet Union. The identity cards that I think that the hon. Gentleman is 205 referring to are to help the residents of Molesworth to get home. They are not there to stop the residents of Molesworth from getting home, which is the purpose of identity cards in some other states.
§ Mr. Lawrence
The hon. Gentleman knows that when the Russians say that, it is not true. Perhaps he should ask the residents of Molesworth, who want to be able to get home, whether they would prefer to be able to do so or be prevented from doing so. The procedure is just to make it easier for law-abiding citizens to go about their ordinary lawful ways. The hon. Gentleman knows that one of our criticisms is that that is not what happens in the Soviet Union.
The hon. Member for Bow and Poplar talked about recommendations to psychiatric help. That may or may not have happened, but there is the world of difference between recommending critics of the regime to have psychiatric help and forcing them to do so even when it is not justified, which is what is happening in the Soviet Union.
The hon. Gentleman also said that in the Soviet Union a person can be convicted on the bribed information of a paid informer. Perhaps that does happen, but in this country nobody can be convicted on such evidence alone, unless a jury of 12 good men and true is convinced that that is the appropriate way to deal with the problem. When one examines them, there is not a great deal of merit in some of the rather more paranoid utterances of the hon. Member for Bow and Poplar. He greatly amuses the House and is greatly respected, but he sometimes goes over the top, and this is one of the subjects on which he does so.
The only disturbing thing about the debate is that Her Majesty's official Opposition are against the Bill. The most positive action that the Government have taken and will take to strengthen civil liberties is opposed by the Opposition.
That the Bill does not deal in one swift, all-embracing, legislative swoop with every single unjustified infrintement of the liberty of the individual in an increasingly complex and vulnerable society, is no reason for voting against it. That it may not be yet the most perfect tool for accomplishing the end that it seeks, is no reason to vote against it.
This is the first serious attempt to put into statute form a protective set of principles and rules in favour of citizens and against the insidious power of the state encroaching on the privacy of our lives. It is there for all to see and to know exactly what it contains and what their rights are, and for independent watchdogs to monitor these activities. I would have thought that all libertarians of all parties would support this Bill. However, Her Majesty's Opposition — I have listened to most, if not all of their speeches—seem to be opposed to it.
§ Mr. Clive Soley (Hammersmith)
The hon. and learned Gentleman is supposed to be a lawyer. I warn him that he will soon be added to the list of lawyers whom I would pay not to defend me. Almost everthing that he has said has been factually wrong. It is factually wrong to say that we intend to vote against the Bill. The hon. and learned Gentleman should at least be able to read the Order Paper and understand what is written on it.
§ Mr. Lawrence
I listened with great interest to the speech of the right hon. Member for Manchester, Gorton (Mr. Kaufman). If that was a speech in favour of the Bill, the right hon. Gentleman could have fooled me.
§ Mr. Lawrence
There may be a reasoned amendment, but it is directed against the structure of the Bill. That is astonishing, given that the structure of the Bill is in favour of protecting the rights of citizens against the encroaching power of the state.
Perhaps the Labour party is no longer concerned about the freedom and protection of the individual. Certainly when the Labour Government were in office for five years they did nothing to guard the citizen in that respect, while, if the film "20:20 Vision" is anything to go by, they took every opportunity to tap the telephones of trade union leaders. Perhaps moderation and good sense have gone out of the window since Labour's takeover by—
§ Mr. Merlyn Rees
I wish that the hon. and learned Gentleman had been here to listen to the speeches. He is making a silly party political speech worthy of a barrister with a poor brief. This is not a matter for silly nonsense. The hon. and learned Gentleman has not listened to the debate. We are not going to vote against Second Reading, and we have made it clear that clause 2 needs altering. The hon. and learned Gentleman is debasing the whole debate.
§ Mr. Lawrence
The right hon. Gentleman is being offensive. Perhaps he does not mean to be. I heard 35 or 40 minutes of his speech, and I found it most interesting. He did not seem to be aware that, under his Government, the Foreign Secretary had powers to protect the economic well-being of the nation. Perhaps I misunderstood the right hon. Gentleman. When I intervened, he said that he had meant only that the Home Secretary did not have such powers. That was very interesting, but it did not advance the argument.
I may be mistaken in saying that the Opposition are voting against the Bill but I am not mistaken when I say that the Opposition speeches — I have heard most of them—show that the Opposition are strongly opposed to the Bill, and that is what I am criticising. It is impossible for anyone who is concerned with the protection of the liberty and the rights of the individual strongly to oppose the Bill. The Bill provides for that protection for the first time in statute form, and makes unauthorised tapping a criminal offence.
If the criticism is that the Bill is not wide enough, that is a reason for supporting it. It is not a reason for opposing it in the way that it has been opposed this evening.
Perhaps the Opposition cannot make up their minds about their attitude to the Bill. Perhaps they do not wish to appear to be moderate. Hon. Member after hon. Member faces reselection by extreme Left-wing committees who do not encourage moderation. I do not know what the reason is, but I am astonished that any hon. Members who believe in the liberty of the individual can speak as strongly as they have against the Bill.
It is clearly in the public interest that for the first time there should be a statutory framework for the protection of the rights of the individual in questions of telephone tapping and postal interception. Nearly everyone must agree that in some circumstances the public interest has to be served by making interceptions. It may be believed that 207 national security is being breached by espionage or subversion. Serious crimes may be about to be committed, or may have been committed but not yet detected. It may also be necessary to preserve the nation's economic wellbeing.
However, if we believe all that we hear on television, and anecdotal and direct evidence of interferences with individual liberty, we are driven to believe that a gap can arise between the rules laid down by Government and the operations of the interception services or of individuals outside those services. How is that gap to be bridged? It is all very well to criticise a Government for bringing in a Bill to deal with the part of the matter that lies within the Government's sphere of influence, but the right hon. Member for Bow and Poplar suggested no way in which a Government could prevent people outside their control from tapping other people's telephones.
To some extent, the Bill will help to close that gap. Ideally, we should go further. In time we shall do so. However, it is difficult to see how the gap can be closed completely when we are not agreed on the methods necessary to stop all unjustified interference with privacy.
Meanwhile, the Bill is an important step. It does not extend the state's power over the individual; it limits it. I think that the Bill should enjoy the support of both sides of the House. It is not perfect. If Bills were perfect when they were brought in, there would be no need for Committee stage or Report. The Bill needs further thought and attention.
Together with my hon. and learned Friend the Member for Fylde (Sir E. Gardner) and the right hon. and learned Member for Warley, West (Mr. Archer), I have the honour to serve on the council of that admirable organisation Justice. Justice has already suggested some improvements. Most of them were taken up by the right hon. Member for Manchester, Gorton. Indeed, they formed a major part of his speech.
Justice says what the right hon. Gentleman refrained from saying — that the Bill certainly improves the situation. We shall be churlish if we do not admit that that is so. Justice suggests, first, that judicial authority should be obtained for every warrant. I do not agree with that. The Secretary of State will know more about the need for a warrant than any judge, and if a judge said yes to every Secretary of State he would be a mere cipher, and that would be a position unbecoming to the judiciary.
Justice suggests, secondly, that the purpose for which surveillance is required needs to be more precisely defined. I agree with that. Serious crimes should be properly, and more restrictively, defined. Thirdly, Justice suggests that a Bill that allows the manager of a hotel to consent to the surveillance of a resident is defective. I agree with that.
Fourthly, Justice suggests that if he comes upon contraventions against an individual that the individual himself does not know about, the commissioner should inform the tribunal and action should still be taken. Certainly, effective protection would need to involve more than a complaint from a member of the public who is aware of an infringement. That is common sense.
Fifthly, Justice suggests that mistaken material should be destroyed. I agree with that.
Public confidence will be most important in the operation of the law. If there is some doubt about whether 208 lawyers ought to be chosen by the Government, the lawyers could be chosen by the senate of the Inns of Court, or by the Law Society — [Interruption.] If the Opposition believe that those bodies are politically governed, will they tell me which political party governs them? I do not see why the tribunal should not be selected by independent bodies, subject to the disapproval of the Prime Minister if she knows something that they do not.
We are striving to strike a balance between the security of the state and the freedom of the individual. That task becomes more difficult, but more urgent, as international terrorism grows stronger, assassinations become more frequent and crime becomes more international and ever more serious.
One point at issue between the two sides of the House is whether there should be more public scrutiny by Privy Councillors or a Select Committee, or whether we should trust the judgment of the Home Secretary, the Foreign Secretary and the Secretaries of State for Wales or Scotland — improved, as the Bill requires, by the monitoring of a tribunal and a commission. The problem is that the more public scrutiny there is, the greater is the chance of the nation's secrets, whether by espionage or criminal or economic information getting out. If such information is given to a Select Committee or even to Privy Councillors, the chances are that information will get out, not because of malice, dishonesty or impropriety, but because we are constantly under scrutiny and, bit by bit, the media manage to worm things out of us. If such information gets into the hands of the enemy of the state, our security is at risk.
§ Mr. Austin Mitchell
It occurs to me, as the hon. and learned Gentleman has emphasised the importance of facts derogatory to the economic performance of the country, that it might be useful if the facts about our economic performance got out so that everyone could do as badly as us.
§ Mr. Lawrence
The hon. Gentleman reminds me of Art Buchwald who once asked at an Oxford union debate why we did not give the Russians our secrets as that would put them three years behind. I do not recommend that doctrine any more than the hon. Gentleman's.
There might be changes and improvements to the Bill to reassure Opposition Members, who might support it, and the public. I am sure that the Government will listen to those suggestions and take the necessary steps to improve it. It is one of the most substantial steps towards the protection of the civil liberties of the individual in recent memory. As such, it deserves the House's support and I hope that it gets it.
§ 8.1 pm
§ Mr. John McWilliam (Blaydon)
I am proud to declare my interest as a sponsored member of the National Communications Union (Engineering Section), which was formerly the Post Office Engineering Union. I am sorry that the hon. Member for Bury St. Edmunds (Mr. Griffiths) has left, as there are a couple of points that I should have liked to put to him had he been here.
I should like to put clearly on record my union's stance on interception of communications and then make a couple of points for myself. I cannot deny that interceptions are sometimes made by members of my union. The National Communications Union welcomes the Government's 209 recognition of the need to introduce legislation in respect of the interception of communications. Indeed, it has campaigned since 1980 for a precise statutory basis for such interceptions.
In 1981, I managed to amend the British Telecommunications Bill in Committee, but when it came to the Floor of the House several hon. Members, such as the hon. and learned Member for Burton (Mr. Lawrence) and the hon. Member for Bury St. Edmunds, who have said that they have not had an opportunity to vote for a controlled statutory basis, voted against my amendment. I have checked the Division list. They voted in favour of the Government's amendment which removed the statutory basis. It is not true to say that hon. Members who have been here since 1979 have not had an opportunity to put the interception of communications on a proper statutory basis. The then Home Secretary, who has been translated to another place, told us, "Everything is all right, lads. There is no problem. Vote this one down; we do not need it," when he knew that the Government were in trouble in the European Court of Human Rights and likely to be clobbered by the Malone judgment. I leave it to Conservative Members to examine their consciences and to consider where this new-found enthusiasm for legislation has come from. I include the Home Secretary and several others in that criticism.
My union acknowledges the important role of telephone tapping and the interception of mail in combating crime and espionage. However, it is important that there should be safeguards against the misuse of such powers, those involved being accountable to law. That is where the Bill begins to fall down. Our members take a professional pride in their work. We welcome a statutory framework which clarifies matters and assures my members' integrity in the eyes of the public. Such assurances must be called for increasingly with the privatisation of British Telecom. No longer is tapping to be carried out by a public corporation because it is now a private company.
With the liberalisation and diversification of the communications industry, which the Government have encouraged, more private companies have potentially become involved in the interception of communications. Mercury, cellular radio consortia and cable television companies have all become involved since the Telecommunications Act 1984 was passed, and with none of the safeguards that used to exist when the dear old Post Office engineers were established civil servants and subject to the discipline code of the Civil Service. They are now subject only to the profit motive of their employers.
Two significant events have increased the pressure on the Government. One is the Malone case, on which 18 judges declared unanimously that the warrant system for telephone taps authorised by the Home Secretary lacked clear safeguards and violated rights to privacy. Even before that judgment, the Government were committed to introducing legislation on this subject as there was an Opposition amendment to the 1984 Telecommunications Bill. My colleagues and I withdrew the amendment on the basis of a clear commitment that the Government would introduce proper and separate legislation that would cover the issues that my right hon. and hon. Friends have mentioned today. The Bill does not fulfil the commitment.
There is another problem, because the Bill covers only telephone tapping and the interception of mail. It does not cover surveillance techniques. All kinds of things are 210 being used. Hon. Members have mentioned infinity taps, spike microphones, fibre-optic taps and parabolic microphones. I shall not take time exploring the merits of some of these questionable devices, but it is clear that if the Government are saying that the use of such devices will also be covered by warrant and scrutinised properly by the House they are saying, "We have been forced by the European Court of Human Rights to put some controls on, but we do not give anything for human rights." They are saying that they will determine the safeguards, which will not be subject to criticism or challenge, and that they are prepared to allow other abuses of privacy to continue.
§ Mr. Mikardo
It seems a quite tenable proposition that the Home Office has told MI5, "Look chaps, bad luck, we have to introduce this Bill to limit telephone tapping because we have been caught out by the European court. Don't worry, you will still be able to keep tabs on anyone you want to keep tabs on. You need fewer taps and more bugs."
§ Mr. McWilliam
My hon. Friend makes an interesting point. Some devices are neither a tap nor a bug, but both—for example, the infinity tap. That is inserted in a telephone which is switched on by dialling the number of the telephone and sending an ultrasonic tone down the line. The telephone does not ring, and when the last digit is dialled it turns the telephone into a microphone that can pick up all conversation in that room. In Committee on the Bill, I shall detail the history of the infinity tap. I believe that a member of the public has been deprived of his rights. He invented the infinity bug as an experiment. It was picked up by the security services when they raided his flat, and they never returned the relevant papers. He has not received a halfpenny in compensation for his invention. One has to tap the line, but it turns into a bug when it is in a telephone. There is a grey area—it is impossible to distinguish clearly between interception and surveillance. Indeed, there are a number of grey areas in this murky ground that we are now covering, but I shall not waste too much time discussing them tonight.
One of the problems is the grounds on which warrants are issued. The proposed grounds detailed in the White Paper give much scope for interpretation of the definition. For example, in the category relating to serious crime the definition includesan offence of lesser gravity in which … a large number of people is involved.Does that mean that the miners' strike and the relatively trivial offences committed would, by definition, give rise to interception of communications? When my union was in industrial dispute with British Telecom and the Government last year, interception certainly took place. As one would expect, my union members are quite good at finding out about such things and we know how to set up false pickets and other false events and then send someone along to take photographs of the police turning up with nobody else present.
It is wrong to say that interception has not happened without warrants. In addition to officially authorised taps certain official tappings do not require warrants. That derives from an institutional relationship between the police, the CID or the special branch and the Post Office—subsequently British Telecom—which was established in the Home Office circular in 1969, and was cited by L. H. Leigh in "Police Powers in England And Wales" on page 215. We know that such things have happened in the 211 past, and the information has been published. Therefore, the remarks made by the hon. Member for Bury St. Edmunds and others about all taps being covered by warrant are nonsense.
The category of warrant concerned with national security includes major subversive activity and circumstances related to internal and external aspects of the nation's security. The recent concern raised by the claims by Cathy Massiter show the sensitivity and importance of a precise definition. It also highlights the problem when a Minister is given powers to interpret such definitions — for example, in the Ponting case — and the accusations, justified or not, that he or she may lay themselves open on grounds of political partiality.
The 1980 White Paper "The Interception of Communications in Great Britain" stated that warrants are renewed for one month for the police, two months for the Customs and Excise and six months for the security services. The Bill extends that to six months in all circumstances. We have not heard a word from the Home Secretary about that, so I hope that the Minister will tell us why that should be the case.
The Bill provides for an investigation by a tribunal. However, I believe that the safeguards are thoroughly inadequate. The Bill provides for five legal gentlemen on the tribunal. I make no complaint about the legal profession. I would not think about lecturing the Home Secretary on the legal profession because he is a lawyer and I am not. However, I take it ill when he lectures me about the telephone system and how to intercept it. I have spent some 20 years in the design, construction and maintenance of that system. I do not believe that the Home Secretary would recognise a bug if it jumped up and bit him, any more than I would recognise a tort if it had jam on it and I thought I could eat it.
It is no good having five lawyers, because all that they can determine is whether the paperwork is right. They cannot determine whether an interception has taken place. The Home Secretary is shaking his head. I draw attention to clause 7(3)(a), which states:On such an application"—one where there is the belief that there has been an unauthorised interception—other than one appearing to the Tribunal to be frivolous and vexatious"—that safeguard is needed because a number of people tell me that their lines have been crackling and making strange noises, but anyone who thinks that their line is intercepted because of that is round the twist, and I assure hon. Members that if a telephone line is intercepted, the line is as clear as a bell because the first thing that is done when the line is tapped is to get rid of all faults—the Tribunal shall investigate.What will it investigate first? Will it be whether there is a relevant warrant or a relevant certificate?
I accept the logic for what it is, but if the tribunal first tries to discover whether there is a warrant and then whether there is a tap without a warrant two things will happen. First, the tap will be taken off and, secondly, the Minister will be told that there is not a warrant. That is the wrong way round. The first duty of the tribunal should be to determine whether the line is intercepted. Its second duty is to determine whether there is a warrant. If it is the other way round, an official tap cannot be detected 212 because it will have been taken off. If the taps are carried out by an unofficial agency, they will not be carried at the telephone exchange. The telephone exchange would be needed to determine whether there was a tap on a line, but unofficial agencies would not have access to the exchange. Therefore, the Bill is fundamentally flawed. I hope that the Minister will explain the logic of checking the paperwork before checking whether there is an interception. Why does he believe that checking the paperwork first will safeguard anyone?
I have had a great deal of experience in this area. I look forward to putting specific points and amendments in Committee. In 1981, in Committee stage on the British Telecommunications Bill, I made a serious and determined attempt to bring about a statutory provision that would allow telephone tapping to be legal and would protect the rights of the individual. My hon. Friend the Member for Bow and Poplar (Mr. Mikardo) also served on that Committee and assisted me. We accepted amendments from Conservative Members and produced a compromise which provided a far better basis for the interception of communications and for the protection of the individual than this Bill provides. It did not go as far as I wanted it to go. It possibly went a shade further than Conservative Members of the Committee wanted it to go. However, when it returned from Committee to the Floor of the House it was voted down by the Government. The Government cannot now stand up with clean hands and say, "We wanted to introduce a statutory basis for the interception of communications." They do not have clean hands; they have been forced into it. The Government have taken the minimum step that they believe they have to take in order to be cleared by the European court and the European convention on human rights.
I have to remind the Government that two sections of the European convention on human rights are involved. The Government have covered section 8 fairly well. However, they have not even begun to attempt to cover section 13, which gives individuals the right of redress. Even if the Bill became law, I do not believe that it would meet the objections of the 18 judges who were involved in the Malone case, nor do I believe that the Government could depend upon it in a future case in which somebody might think that he had been deprived of his rights—I believe deliberately—because of the form of the Bill.
We shall not vote against Second Reading. The hon. and learned Member for Burton must not imply that we shall. We shall vote for the reasoned amendment and will attempt to amend the Bill in Committee to cover some of the points that both I and other Opposition Members have made. Above all, we shall try to bring the Bill fully into line with articles 8 and 13 of the European convention on human rights. The Bill does not do so at the moment.
§ Mr. Derek Spencer (Leicester, South)
For those hon. Members who like hunting the bogey man, this subject is full of possibilities. Some right hon. and hon. Members of the Opposition have thrown themselves into the chase with all the vigour that they can command. But for those of us who are of a less neurotic disposition I believe that this topic is important and practical and that most people take as their point of departure the principle that those who seek to justify these powers have the burden of showing to everybody's satisfaction that such powers are necessary, that they are not exercised beyond the extent that is 213 necessary and that their exercise is properly circumvented by remedies and checks. That is the gut reaction from which most people in this country start and it is not surprising that the common law contained the offence of eavesdropping which was defined aslistening under walls or windows or under the eaves of a house and framing slanderous or mischievous tales.Some of my political opponents on Leicester council who are currently engaged in a rate-capping campaign may find themselves embraced in that activity.
§ Mr. Spencer
No, not at the moment.
The penalty for eavesdropping was the use of the ducking stool. Therefore, right hon. and hon. Members will not be surprised to learn that, although the gut reaction of the English common law was to institute the offence of eavesdropping, it was in fact abolished in 1967 by the Criminal Law Act of that year when misdemeanours and felonies were consigned to the shelves of legal history. I shall now give way to the hon. and learned Gentleman.
I am most grateful to the hon. and learned Member. His history lesson is very constructive and interesting, but in the light of the experience of the common law and of the wise use in days gone by of the offence of eavesdropping, does not the hon. and learned Member agree that the Government should have learnt the lesson of history and incorporated in the Bill the recommendation of the Royal Commission on Criminal Procedure that the use of all surveillance devices by the police should be regulated by statute?
§ Mr. Spencer
The hon. and learned Member has already heard what my right hon. and learned Friend the Home Secretary had to say on that point. If the hon. and learned Member speaks later, I hope that he will take the opportunity to refer to the fact that no Government have done as much as this one in drawing to the attention of the public the guidelines about surveillance under which the police now work. We are indebted to my right hon. and learned Friend the Home Secretary for the guidelines that he made available at the end of last year which, for the first time, brought that matter before the eye of the public. The nonsense that we hear from the Opposition about this Government trying to suppress civil liberties is, I believe, the absolute reverse of the truth. No Government have done more to reveal to the public the guidelines under which the police operate in relation to surveillance, and now the Government are legislating in relation to the interception of communications.
It is a tribute to the tranquillity of our constitution that it has taken 106 years for any party to introduce legislation relating to the interception of communications. The first telephone installation took place in this country in 1879. There were seven lines. Last year there were more than 20 million lines. This Conservative Government are now introducing legislation.
We would be justified in asking, first, whether it is necessary to have this practice at all, or whether we can take the view that our society is so well ordered and tranquil that the interception of communications is not required. I believe that no reasonable person would seek to advance that proposition. Every right hon. and hon. Member of the Opposition has tonight, either expressly or 214 by implication, accepted the need for some degree of interception of communications to be carried out by the organs of state.
I put this question fair and square to the hon. Member for Walsall, North (Mr. Winnick): if the National Front were to go to my constituency, 25 per cent. of the constituents of which are of Asian origin, and plan a major riot and attack upon the Asian section of the community, does the hon. Member think that the Home Secretary might be entitled, if he saw fit, to authorise an interception of communications against those members of the National Front who were minded to engage in that kind of activity? I shall look forward to hearing his answer in due course. I shall take no more time to answer the first question, whether we all take as our common point of departure that in some circumstances the interception of communications is necessary. The answer must be yes.
I pass on to an area which it is more useful to investigate: and that is, whether the interception takes place in circumstances that make it strictly necessary. Certainly the evidence that we have heard today from the right hon. Member for Morley and Leeds, South (Mr. Rees) takes the wind out of the sails of those who would say that a great deal of it goes on. Obviously, there is not a great deal of it going on. According to the figures available, there are four warrants per 1 billion letters that go through the post and there are 21 warrants for every 1 million phone lines. Therefore, in purely statistical terms, the extent to which interception takes place is, as it should be, on a small scale.
Opposition Members say that the criteria in clause 2 are vague and unsatisfactory, and they seek to impugn the Bill on those grounds. That attack is difficult to sustain. The words are clear and unambiguous. The three criteria use ordinary English words that any member of the public could easily understand. The warrant must be necessaryin the interests of national security; for the purpose of preventing or detecting serious crime; or for the purpose of safeguarding the economic well-being of the United Kingdom.There is nothing vague about that.
As an extra line of attack, it is said that the Brill is sweeping. Certainly it is couched in general terms, but the answer to that has already been given by the right hon. Member for Morley and Leeds, South. His speech illustrated how, right at the heart of the Home Secretary's duties, lies the exercise of discretion and judgment, which it is not easy to translate into words which will cover every conceivable eventuality. Although I followed his factual exposition of the burden which the Home Secretary has to carry, I did not go with him along the road down which he invited us to follow him when he said that the categories of cases and criteria which the Home Secretary should apply should be set out in a schedule to the Bill. That conclusion which he sought to draw was at odds with the premise that he had earlier laid down.
The answer to the second question, whether the interception takes place only in circumstances which make it necessary, has been affirmatively given by the Opposition.
That leaves us with only the last question: are the safeguards adequate for instances where interception takes place? That is what the Bill is all about. It introduces, for the first time, a new criminal offence of unauthorised tapping. That is quite new in our law. Surely it must be calculated to deter those people who are contemplating unauthorised tapping.
215 Clause 7 is drawn in wide terms. It is purely subjective. If any member of the public believes that his phone has been tapped in an unauthorised manner, he can complain to the tribunal, which has available to it the various powers that are given under the Bill. It would be open for the tribunal to call for papers to see whether the original warrant complied with the criteria set out in clause 2. That is an effective check upon the exercise of ministerial discretion.
An hon. Member sought to attack the Bill on the grounds that the tribunal is comprised only of lawyers. Being a lawyer myself I would be the first to say that they are by no means perfect. They have a range of defects. But for the most part they do not have any special defects. Those that they have tend to mirror those of a cross-section of the community.
The important thing is that, in the Klass case, the European Court of Human Rights considered the position in West Germany where the supervisory system is not a judicial one. It said that in its view the best supervisory system was comprised of judicial personnel. In setting up such a tribunal in this Bill we are surpassing the German model and complying with the exhortation that came from the European Court of Human Rights in the Klass case.
This is a workmanlike Bill. It is a balanced and common sense approach to the problem. If there is any threat by Big Brother, he will hereafter be more of a bogey man and less of a reality.
§ Mr. Tony Benn (Chesterfield)
My interest in this debate is that it is one of the few occasions—I cannot recall another one—when we have had a debate on the security services. If we are to discuss the security services, we should look at the threat. We must analyse with clinical precision what it is that the security services are there to protect Britain from.
I do not think that any hon. Member would disagree with the proposition that the security services are there to protect us from violence, from abroad or at home, or from crime. But there is a substantial difference between criminal and violent actions and radical opinions. This Bill—this is why it is so important that we should debate it—deliberately fudges the difference between the two.
It is a bad Bill. Clause 2 gives a blank cheque to the Home Secretary to tap or intercept any telephone call. But what is most offensive to me about the Bill is that it was introduced and supported with soothing words implying that in our most perfect of all perfect democratic worlds there is very little interception of telephone calls. Indeed, when the Home Secretary introduced the Bill, in a speech that was as soothing as it was deceptive — indeed, misleading — in character, he said that there was no change in the status quo.
Therefore, I want to begin by bringing such experience as I have had as a former Postmaster General, Minister of Technology and Cabinet Minister for many years to bear on what happens. We should know what happens. The reality is that for many centuries the Government of the day have maintained a continuous interception and surveillance of all their critics. Indeed, the Royal Mail was set up in 1660 because the king had to be able to open everybody's letters to know who was writing to whom about what. The prerogative of the Crown, which, until 216 this Bill, was the sole authority for interception, goes back to that. Those who have read 19th century Labour history will know about Oliver the spy, and will know that the state has always had agents provocateurs who have operated mainly in the Labour movement.
Today, I received an extract from Hansard through the post. I did not pick it out myself, but it is dated 2 July 1925. The then hon. Member for Leith, Captain Wedgwood Benn, asked the Home Secretarywhat general rules govern the attendance of secret police at meetings; on what subjects they are asked to report; and whether they are employed to register in general opinions expressed, or whether their duties are limited to the prevention of crime and of the advocacy of crime?Sir William Joynson-Hicks replied:It is the duty of the police to obtain all the information they can with regard to the aims and projects of revolutionaries, in order that they may inform His Majesty's Government on the subject and be forearmed against any attempts to put such projects into effect. It is impossible to state categorically the means by which this duty can best be discharged, and even if it were possible, it would not be in the public interest to do so.The hon. Member for Leith, who happened to be my father, then said:Could the right hon. Gentleman say clearly whether the purpose of these secret police visits is to register opinions or to prevent the advocacy of violence? That is the question".The Home Secretary replied:The object of police attendance at any particular meeting is to inform me of what takes places at that particular meeting; and if there are revolutionary sentiments or revolutionary projects discussed at that meeting, it would then be my duty to see that they are not carried into effect."—[Official Report, 2 July 1925; Vol. 185, c. 2778–9.]At least that was honest. The Home Secretary then said that he was going to send secret police to meetings to tell him what was said. That has been the basis of Government surveillance and of the interception of all telephone calls and other communications ever since then. It would be ludicrous for one party to try to gain an advantage over another, and so I must say in all fairness that what we are discussing has gone on under all Governments, with very little difference between them. Anyone who has read Barbara Castle's diaries will know that she reports in them that the security services from time to time reported to her about the attitude of trade union leaders.
When I recommended Jack Jones, who was one of the pillars of the Labour Government in the support that he gave to our incomes policy and so on, as a possible chairman of the National Enterprise Board, Box 500 told me that he was subversive. Actually, he did not want the job anyway. Hugh Scanlon was described as subversive.
Anyone who thinks that the supervision, surveillance, bugging and tapping of trade union leaders has not gone on under other Governments is misleading himself. It is important that we should be honest with ourselves and with the public, as otherwise no one will believe a word that we say.
Harold Wilson, who had an absolute obsession with Communists and particularly with Trotskyites, used to boast of the amount of surveillance that he undertook. I think that it is right—at least I feel an obligation—to tell those who do not know it that if they are Communists, read the Morning Star, Militant or the Socialist Worker, or if they are active in strikes, are perhaps members of Friends of the Earth, hunt saboteurs or engaged in, say, the activities of the Animal Liberation Front, they will be watched, bugged, intercepted and listened to, because that has been the practice of successive Governments.
217 To the best of my knowledge, I never met Harry Newton, but on the assumption that Catherine Massiter spoke the truth, he was recruited from the Communist party and was engaged in penetrating CND or whatever for 30 years — and I cannot see why Catherine Massiter should not have spoken the truth—in acting as an agent provocateur, and in encouraging people to do things that they would not otherwise want to do. Thus, if we are told that we are maintaining the status quo, we should be clear what it is.
I come to an important point that has so far been missed. I am glad that my right hon. Friend the Member for Cardiff, South and Penarth (Mr. Callaghan) is here. All the talk about security is about the Home Secretary. But security in Britain is controlled by the Prime Minister. My right hon. Friend is one of the very few people—and he may be unique—who has occupied three great offices of state, or four if one includes the Treasury. He has been Foreign Secretary in charge of MI6, Home Secretary in charge of MI5 and Prime Minister in charge of the lot. When discussing security, the most important thing is to know that it goes back to No. 10 Downing Street. I am not even sure—and I wondered when I listened to my right hon. Friend the Member for Morley and Leeds, South (Mr. Rees), who was once Home Secretary—how far Home Secretaries always know what is happening in security, or how much Prime Ministers tell Home Secretaries and Foreign Secretaries.
I recall one occasion in 1966 when I had a particularly sensitive nuclear secret that I had to take to the Prime Minister. He told me not to tell the Foreign Secretary, who was then George Brown. I can quite understand why he said, "Don't tell him," but the fact remains that the Prime Minister said to me, "Whatever you do, don't tell the head of MI6 what you've told me about this particular nuclear secret."
The question whether we are propping up or undermining parliamentary democracy arises because this whole security business rests on the use of an undiminished mediaeval prerogative. Indeed, I made that point in the Belgrano debate. The Prime Minister has the power, and so has the Home Secretary under his authority, to intercept, and to define national security and then to keep secret what is done. It is important to make that point.
I made my next point in the Belgrano debate too, because the issues are comparable. It is important that the country should know that British intelligence is wholly integrated with, and subordinated to, United States intelligence, which supervises and controls our intelligence service. Anyone who has followed this issue — perhaps my interest stems from many years as a Minister with nuclear responsibilities—knows that what is called the special relationship with America, and is often referred to at Pilgrims' dinners and on formal occasions, in fact means that in return for American intelligence supervising our intelligence and obtaining information from our intelligence about our "subversives", the Americans let us have access to their military and nuclear technology.
Therefore, we are not special or free agents. As I said in the debate on the Belgrano, the decision to ban trade unions from GCHQ was part of the price paid for that special intelligence relationship. Indeed, there is an inner, inner Official Secrets Act that Ministers have to sign, over and above their general responsibilities, if they are to be allowed to have access to United States intelligence.
218 In the light of that, I come to the criteria in the Bill. Those set out in clause 2(2)(b) about crime are wholly acceptable. Who could possibly object to a Home Secretary deciding, in anticipation of some serious crime, to put a bug or a tap on communications? But clause 2(2)(a) and (c) about national security and economic well-being is entirely discretionary in ciaracter. There is no objective test that could be applied.
I have mentioned the question whether the Bill upholds or undermines parliamentary democracy, because the whole purpose of Parliament is to discuss and decide what is in the interest of the nation in terms of security, and what is in the interest of the nation in terms of its economic well-being. The democratic process is determined on polling day and then reflected in subsequent votes in Parliament. But once national security and economic well-being are abstracted from that, and are withdrawn into the prerogative, and once it is said that those are matters for the Prime Minister to decide, then the very parliamentary democracy that the system is allegedly being used to defend is undermined.
Arguments about national security must be central to a free debate. Let us take the argument of whether our national security is improved or harmed by nuclear weapons. I shall not go into the arguments in detail, because this is not the time or place for that. But there are those—including the Secretary of State for Defence and the Prime Minister—who believe quite sincerely that we must have nuclear weapons with which to defend the security of the country. Others, including me, believe that the presence of American nuclear bases which can be used to fire nuclear weapons without the consent of the British Government, is a threat to national security. It is impossible to take that out of the debate and to say that that is something which, if the Prime Minister and the Home Secretary so determine, justifies bugging. That would destroy Parliament.
As to economic well-being—
§ Mr. Benn
I shall not give way, as I should like to develop my point. I am trying to be non-controversial. I am making a constitutional point, and I ask Conservative Members to consider the following. If a Government were elected which Conservative Members did not like, and used those powers, and said for example that monetarism was damaging the economic well-being of the country and that the telephones of monetarists, stockbrokers and anyone engaged in closing a factory here and opening one in South Africa could be tapped, they would not like it. The House should be careful that it does not give too much power to the executive. Although the words look lovely to a Thatcherite Government, they might not look so lovely to the Conservative party if these powers were in the hands of those who fundamentally disagreed with its philosophy.
One cannot fall back on the final defence that the measure is to protect parliamentary democracy. Many of the keenest and most important debates in our history have been about parliamentary democracy. I looked up one of my favourite quotations from 6 July 1831. Sir Robert Peel, who opposed the Reform Bill, warned that even a limited extension of the franchise was contrary to our parliamentary traditions. He said: 219I am convinced that it is not founded on the acknowledged principles of the constitution — because it does not give security to the prerogative of the Crown—because it does not guarantee the legitimate rights, influences and privileges of both Houses of Parliament".The case against the Reform Bill was mounted on the grounds that it would undermine parliamentary government.
Mr. Asquith, who opposed votes for women in 1910, argued the same case, and said that if Parliament gave votes to women, it would undermine parliamentary democracy. I warn the House to be extremely careful not to allow national security, economic well-being or a definition of what parliamentary democracy is to be subtracted from the public arena, the Chamber, and handed over to secret decisions by a Home Secretary and Prime Minister surrounded by security officers. If one did that, one would undermine the parliamentary democracy that we are supposed to be protecting.
The proper handling of the matter should include a full inquiry into the security services by a Select Committee and detailed discussion about what is subversive. As I said earlier, there is a subversion of violence or the planning of crimes of violence which is clear, but radical personal conviction is not the same as subversion. To argue that those who hold an unpopular view are by virtue of their view or membership of an organisation subversive, is a dangerous doctrine. That is true of the Right and the Left. There must also be accountability for operations undertaken by the security services afterwards under the proper protection of either Privy Councillors or a parliamentary Committee. The Americans have that and there is no reason why we should not have it.
I am deeply worried that the Prime Minister, who loosely used the term "enemies within" to cover everything from the IRA to the National Union of Mineworkers, is building a public argument to give herself that power in the guise of national security or economic well-being. She is giving herself the power to watch and control everybody, and for the first time that power is to be put in statute form as well as used as a prerogative.
To put it bluntly and simply, the Prime Minister, Ministers and security services who support the Bill are endangering the democracy that they pretend to defend. Because Governments of all parties act in that way, surveillance, interception, bugging, tapping and agent provocateur work will continue under any Government. It always has done and always will do.
However, we must safeguard our liberties. Sarah Tisdall, Clive Ponting and Cathy Massiter are people from within the service who were moved by their consciences against what they were asked to do. The ultimate safeguard of our liberties does not rest with the Home Secretary, the head of MI5 or any of the officials who work in it, but with those who are committed by conscience to their convictions: those outside who campaign for change, and those inside who have the integrity to differentiate between what they are asked to do and what they know is right. Our safeguards rest with them, not in this place, in Acts of Parliament, in judicial inquiries or with lawyers, who are paid, I fear, to say almost anything. Our safeguards lie with the basic integrity of people who argue their case from conviction and those inside Government who will not be the tools of a police state.
220 Those thoughts should be on our minds when we debate the Bill in Committee. On reflection, the Conservative party may conclude that it has as much to lose from the subtraction of legislative power and its transmission back to the executive, as have the Opposition.
§ Mr. Stefan Terlezki (Cardiff, West)
I believe that the Bill is most important for national security, the well-being of our great country and, indeed, the national economy.
I am worried that some Opposition Members attack and criticise the interception and surveillance of organisations such as the Campaign for Nuclear Disarmament and of extremists, and say that militant leaders of trade unions must never be interfered with. They also say that the leaders of Militant Tendency, Trotskyites, Marxists, crypto-Communists and Fascists should never be interfered with and should be left alone.
As a taxpayer and one who believes in freedom, democracy and the well-being of the economy, I should be horrified and appalled if extremists, Trotskyites and organisations which might damage our economy, policies and the political freedom of this House were allowed to get away with it, and to pursue their destructive activities against my country. They should not be allowed to undermine the economy and our national security, or be a threat to freedom. I would be worried about that. Therefore, I agree with and respect the right hon. Member for Cardiff, South and Penarth (Mr. Callaghan), who spoke wisely and helpfully in the debate.
Of course we all accept that phone tapping is a frightening intrusion into the privacy of the individual and that it must be controlled and supervised carefully and rigorously to ensure that we do not fall into the category of interrogation, as some of us have experienced in our lives. Governments of all parties have authorised, through their Home Secretaries and Foreign Secretaries, the tapping of a limited number of telephone lines. Now, for the first time, an independent tribunal will be established to provide effective protection of the individual, which will have the power to do a job effectively for the benefit of our citizens. Interception is authorised only when the Secretary of State considers that it is justified for the prevention or detection of serious crime or to safeguard national security. The maintenance of the economic well-being and the security of our country must be paramount.
The authorisation of the interception of communications as a means of finding out some of the secrets of criminals and terrorists engaged in dangerous activities must be carefully pursued. Regrettably, Britain is suffering from the activities of the most highly organised criminal gangs, especially in drug trafficking, that we have ever encountered. The ruthlessness and violence of criminals and terrorists are increasing. There is a constant threat from terrorism which has resulted in many callous and indiscriminate murders, and it is no secret that our national security is constantly at risk because of the activities of foreign spies and their treacherous stooges who have infiltrated our security network. They are the apparatchiks who, in co-operation, regrettably, with born and bred British people, are trying to undermine the security and freedom of our country. I regret that very much.
The Government would put innocent lives at risk if they were to deny the police those essential powers. Every Government must ensure the safety of their citizens and 221 the security of the country, and all previous Governments have done so. Regrettably, the Labour party today is different from the Labour party of the past. The organisations and fringe bodies that have latched on to the Labour party contain individuals who are more concerned with wrecking the nation than with promoting alternative democratic policies and protecting freedom and democracy. We should ask ourselves the straightforward question: does the controlled use of phone tapping prevent terrorist outrages, convict major drug traffickers or identify traitors seeking to undermine our security? If the answer is yes, I am convinced that we must support the Government and the Bill, because it is the best safeguard that we can have.
§ 9.3 pm
§ Mr. David Winnick (Walsall, North)
The Bill is being debated against a background of serious allegations about the security services. During the past few weeks, we have been informed—it has not been contradicted in any way — that leading trade unionists, leading campaigners for nuclear disarmament and other such people have been the victims of state harassment. That is why it is important that adequate provision is made to protect the civil liberties of our people. The Bill has been harshly and rightly criticised from the Labour Benches because it is completely inadequate.
Many people are bound to ask: how useful is the proposed tribunal when that body will be able to decide only whether interception has been properly authorised? It will not be able to give all the reasons why authorisation was given in the first place. The Home Secretary told the House two or three weeks ago that anyone who has suspicions about telephone interceptions can refer them to the tribunal, which will have access to relevant information and can establish whether there has been interception, authorised or not, and whether, if the interception was authorised, that authorisation was properly given. In other words, at most it will be the remit which was given to Lord Bridge. That will certainly not answer the complaints of people who have every reason to believe that their telephones are being tapped.
As I have stated, the tribunal will not be in a position to go into all the factors that have led to the authorisation being given. If I understand the Bill correctly, the tribunal will not be able to tell somebody that his or her telephone has been tapped if an authorisation has duly been given. What safeguard is that to the people whom I mentioned, be it the chairperson of the CND or an official of a trade union? They will make their complaints to a tribunal, but they are not likely to get much satisfaction. That sort of harassment is not likely to come to an end. Is it any wonder, therefore, that we are critical of the Bill?
I do not deny—nor, I assume, would my right hon. and hon. Friends — that there are occasions when interception, as in criminal cases, can be justified. It is not part of my argument to say that in no circumstances is interception unnecessary. However, it should be kept to the very minimum. I also accept that there are cases where, in the defence of the realm and of security, there are justified reasons for it.
Labour Members who serve on the Select Committee on Home Affairs have been concerned about the guidelines on subversive activities in the course of the public sessions. I agree with my right hon. Friend the Member for Chesterfield (Mr. Benn) that these matters have been 222 going on for some time. The present guidelines were issued in February 1975 by Lord Harris, then a Labour Minister of State at the Home Office. The guidelines state:Subversive activities are generally regarded as those which threaten the safety or well-being of the State and which are intended to undermine or overthrow Parliamentary democracy by political, industrial or violent means."Political means" can have a pretty wide interpretation by the security service and special branch. I am convinced that those guidelines are far too wide and that, as long as they remain, the kind of abuses will occur about which we have been hearing, and which concern certainly Labour Members if not Conservative Members. If we are properly to safeguard our citizens, the guidelines given to the security service must be considerably tightened up.
My right hon. Friend the Member for Chesterfield, speaking as a former Cabinet Minister, in a frank speech said that these practices have been going on for a long time. Indeed, he took us back, and rightly so, to past centuries and to the way in which Governments have used spies, agents provocateurs and so on. I am sure, however, that some of the practices that went on in the 1970s have been widely extended in recent years. It may well be that other Governments intend to act in the same way. The difference lies in the attitude of Labour and Conservative Back Benchers.
Labour Members, even if our party were in government, on seeing a film like "MI5's Official Secrets" would be deeply concerned, as we are now. We would be no less concerned because our own Government were in office. But there does not seem to be much concern on the Conservative Benches. That is why, when the hon. Member for Stroud (Sir A. Kershaw) in an intervention in Home Office questions the other week said to the Home Secretary—without qualifying it—that if such people as CND and the rest—this is clearly what he meant—were not being investigated, he wanted a refund of his money, Conservative Members roared with laughter. I do not consider it amusing. It should not be part of our duly to permit the sort of abuses that have occurred and which clearly should be brought to an end.
Consider, for example, the film "MI5's Official Secrets" which was originally banned and which, perhaps because of pressure and the fact that no prosecutions were to take place, was shown on Channel 4 last Friday. No Minister has said that the facts depicted in the film were incorrect. Like other hon. Members, I knew nothing of Miss Massiter before the film was made.
If Miss Massiter is genuine — I have no reason to believe otherwise—and if she has no motivation other than what she stated on television, what she said should concern hon. Members in all parts of the House. If agents of the state—she was employed of course by MI5—are harassing law-abiding citizens, who certainly believe in parliamentary democracy and so on, she is to be congratulated on performing a service to the state. We should know about abuses that have occurred.
§ Mr. Richard Hickmet (Glanford and Scunthorpe)
The hon. Gentleman suggests that Conservative Members, particularly Back Benchers, are not concerned and have expressed levity about the matter. Is it not a fact that the Government have introduced this legislation because of incidents that arose in the Malone case, those incidents having occurred during the lifetime of the last Labour 223 Government? Is it not also a fact that the ruling of the European court as much as anything else stimulated the presentation of the Bill?
§ Mr. Winnick
It is clear that the Government have been forced into it by the European Court. I do not believe that they would have acted otherwise.
Consider the case of the late Mr. Harry Newton. It is understandable that his widow and some of his friends are concerned about allegations that have been made. The Home Secretary should clear the issue up one way or the other. I tabled a question on the subject and asked—so far as I was able, because of restrictions at the Table Office—if the late Mr. Harry Newton was given any sums of public money.The answer that I received yesterday from the Home Secretary was:I understand that certain allegations have been made about the existence of links between Mr. Newton, the security service and special branches. It is not the practice to comment on allegations of this nature.Why not? Mr. Newton is dead. Let us have the facts and get the matter cleared up once and for all. If he was planted as a spy in an organisation such as CND, we should be told why that action was taken. If Conservative Members are concerned for civil liberties, they will share my sentiments on matters such as that.
It may interest the hon. Member for Bury St. Edmunds (Mr. Griffiths), who acts for the Police Federation, to recall the story in The Observer a week last Sunday in which it was stated that a former editor of the CND journal had been interviewed about leading people in CND. The Home Secretary reminded us today that CND is a lawful organisation and we know it is not illegal, even under the present Government, to campaign for unilateral nuclear disarmament. I could not get much joy in response to a question that I asked the Home Secretary on the subject. The right hon. and learned Gentleman responded to my question about the editor of the CND journal:I am assured by the commissioner that no inquiries have been initiated by the Metropolitan police special branch outside the terms of those guidelines."—[Official Report, 11 March 1985; Vol. 77, c. 27–28.]I quoted from the guidelines. If it is true, why on earth should the special branch ask a former editor of the CND journal questions about the people in CND, about their private lives and the leadership style of the general secretary? What on earth have such investigations got to do with national security? Conservative Members say that we are in a state of paranoia over these matters, but surely we have every reason to be concerned.
§ Mr. Eldon Griffiths
I will try to answer the hon. Gentleman's rhetorical question, which he prefaced by saying "If it is true". The reason why it might well be perfectly reasonable to interview the editor of the journal—or, indeed, the editor of Conservative Monthly News—is that any Soviet agent within this country who is worth his salt would try as hard as he could — perhaps he would fail—to penetrate organisations like the CND in order to achieve his own purpose. It must be right for the security service to keep an eye on that.
§ Mr. Winnick
I think that the hon. Gentleman, on reflection, will recognise what a feeble response that was. It is interesting to note that no allegation has been made 224 that the editor of Conservative Monthly News, or whatever it is — it is not a journal that I read — has been interviewed in any way. What the hon. Gentleman is saying in effect is that it is perfectly all right for the police to interview people and probe into organisations. So where is the end of it, where is the limit?
§ Mr. Winnick
No, I will not give way.
I believe that all these matters which my hon. Friends and myself have spoken about should give rise to concern about the way in which civil liberties in this country are being seriously infringed.
There is a reference in the Bill to safeguarding the economic well-being of the United Kingdom. I doubt whether leading companies in this country which invest abroad, undermining our manufacturing industry and creating a great deal of unemployment in our constituencies, are the object of any investigation by the security service or the special branch.
This Bill is hardly likely to meet our concern about civil liberties and the way the freedom of law-abiding people is being undermined as a result of the guidelines and the lack of concern on the part of the Home Secretary and other Ministers. Perhaps there are some people in security and in MI5 — I hope not many — whose belief in parliamentary democracy is not all that strong. Perhaps there are those who believe that this House is just a talking shop and that there is no reason why we should be debating security.
It is all the more necessary that the security service and all the rest have some parliamentary accountability. I do not question the need to safeguard genuine security but, to the extent that these political abuses occur and continue to occur, the security service will undoubtedly become the object of criticism and hostility. So, in its own interest there is a good case for some parliamentary accountability.
Civil liberties are one of the reasons for the existence of this House. First and foremost it is our job to ensure the freedom of our citizens. Tory Members speak a great deal about that but in practice they do not seem in any way concerned about the allegations that have been made concerning the security service and the special branch. As I see it, our job is at all times to safeguard civil liberties. If the civil liberties of the general secretary and the chairperson of CND, and of leading trade unionists, are being undermined by probing, telephone tapping and all the rest of it, we must try to rectify the situation. It is my view that the Bill before us today is a miserable substitute for the real protection of civil liberties.
§ Mr. D. E. Thomas (Meirionnydd Nant Conwy)
One of the most remarkable features of the debate has been that we have heard parts of the memoirs of at least three Cabinet Ministers. It is important for us to have those clear statements in the House of what goes on in the procedures of Government.
Surely the major problem that we have to face in the Bill is the expected failure of the Government to produce what they intended to produce, as set out in their White Paper. In paragraph 7 of the White Paper the Government say that their aim in introducing legislation isto provide a clear statutory framework within which the interception of communications on public systems will be authorised and controlled in a manner commanding public confidence.225 It is clear from what we have heard in the debate—I endorse everything that the hon. Member for Walsall, North (Mr. Winnick) has just said — that the Government have totally failed to produce legislation that provides anything like a clear statutory framework. I shall go into a little detail on some of the wording in a moment.
The Government have also failed to produce anything that can command public confidence. This has been admitted on the Conservative Benches. It is clear that the security services themselves are in a crisis of confidence. We have not seen—certainly not in recent years—such criticism of the security services from a broad spread of the media as we have seen in the past three or four weeks. When the Bill was originally published, most of the leading papers were extremely critical of its failure to produce the safeguards that it set out to produce. I endorse those criticisms of the contents of the Bill.
The Bill fails completely from its inception in dealing with the issues at stake. It is called the Interception of Communications Bill. In reality, as we have heard from many Opposition Members, only certain communications are covered. There is coverage of only one form of interception—in the telephone system. The broad area of invasion through bugging devices, directional microphones and all the other forms of surveillance is not covered.
There was a famous incident in the constituency of my hon. Friend the Member for Caernarfon (Mr. Wigley) at Talysarn when a whole community was bugged by the security services because a bug was placed in the telephone kiosk. It was only through people in the community surveying the activity of the security services that the bug was discovered. No explanation, adequate or otherwise, has been forthcoming from the chief constable of north Wales or the Home Secretary about the intention of that bugging. That incident gave rise to a popular song in the Welsh language, which I shall not quote tonight.
Such incidents show the way in which the community has been sensitised to the surveillance upon it. Such sensitising of the community to surveillance, as in the famous Talysarn incident, has happened throughout Britain in recent weeks, as the "20:20 Vision" programme, on which I congratulate the producers and all those who appeared on it, reminded us. It reminded us of the reality of control of dissent in our society. The Bill is part of the control of dissent. It deals with a limited attempt to intervene with a small aspect of the communications network, but by doing that and not dealing within a statutory framework with the rest of the surveillance of communications it fails to put the surveillance of communications on a democratic basis. There is no new accountability in the form of surveillance.
In clause 2(2) we are given the three reasons for the issue of a warrant for surveillance by the Secretary of State. They are the interests of national security, preventing or detecting serious crime, and safeguarding the economic well-being of the United Kingdom. Nowhere in the Bill or the debate have we had a definition of what those terms mean. At the end of some of the longer Bills that we have discussed, detailed schedules have contained definitions of precisely what the wording meant.
There has been no attempt in the Bill or the White Paper to define exactly what the interests of national security are. However, in the White Paper there have been some attempts in paragraphs 20 and 21 to define what serious offences are. As we have already heard from successive 226 Home Secretaries, national security is defined by each Home Secretary. The right hon. Member for Morley and Leeds, South (Mr. Rees) said that it should be for the Home Secretary of the day to produce a definition of subversion. In my 11 years in the House, the category of subversion has been extended gradually.
There is no definition of serious crime or of national security in the Bill. However, paragraph 20 of the White Paper says:Interception will be authorised only if the offence is one for which a person with no previous criminal record could reasonably be expected to be sentenced to three years' imprisonment; or is an offence of lesser gravity in which either a large number of people is involved, or there is good reason to apprehend the use of violence, or in which the financial rewards of success are very large.In regard to a serious offence and the involvement of large numbers of people, I want to compare the form of words used with what is in the Police and Criminal Evidence Act 1984. It categorises criminal offences into offences involving arrests with a warrant, arrests without a warrant, which are arrestable offences, and serious arrestable offences. The gravest of these is a "serious arrestable offence" which includes offences which causeserious harm to the security of the State or to public order".In the context of the White Paper and the Bill, will serious offences include the same kinds of serious offences as are defined in that section of the Police and Criminal Evidence Act? If so, and if the involvement of a large number of people in an offence of lesser gravity is a category which would authorise interception, any mass demonstration organised by anyone in the United Kingdom becomes immediately a subject of surveillance.
I go further. In one of his most revealing answers, the Secretary of State for Defence, who has made many revealing answers in the House not so much by what he has said but by the style in which he has said it, told those of us who questioned him about the successful battle of Molesworth that the reason that the police, the military police and the Royal Engineers were used against the peace movement was to anticipate and prevent mass civil disobedience.
No doubt it is part of the Government's strategy in preventing dissent to prevent those who disagree with their policies from gathering together and organising themselves in dissent. As we have seen throughout the mining dispute, demonstrations, picketing and the movement of demonstrators and trade unionists were all subject to various forms of surveillance. At the beginning of the dispute in south Wales there was a celebrated case in which buses which had been hired by the National Union of Mineworkers were followed. This could have happened only as a result of the tapping of telephones of private bus operators in south Wales. All forms of demonstration against the Government could be categorised as serious offences which would be subject to surveillance.
Another category concerns me. There has been reference in the debate to warrants issued by the Secretary of State for Foreign and Commonwealth Affairs. We have heard a little about warrants issued by the Home Secretary. Under the Bill, a warrant can be issued on grounds of national security in support of the Government's defence and foreign policies. We should be told more about the use of warrants in this category. As the Bill proceeds, we shall ask further questions on that. Does it refer merely to warrants issued by the Foreign and Commonwealth Secretary in respect of the activities of MI6, or are we 227 talking of the use of warrants against people who do not support the Government's defence and foreign policies? It is important for us to understand what that category is. Here again, the self-definition of national security by the state is being broadened in a way that undermines democracy.
The Bill does not cover the reality of the surveillance that is going on. It pretends to give us a structure of accountability, whereas in reality it gives us no such structure. This has been true of the history of the argument about telecommunications surveillance in Britain. We have always been given inadequate figures. For example, last year 354 warrants were issued by the Home Secretary. We are never told how many of these warrants apply to individuals and how many to organisations.
Clearly the House would accept that paramilitary organisations dedicated to political violence should have blanket surveillance. However, there is no argument for a blanket warrant for surveillance of people who are members of legal, democratic organisations whose objectives are open and whose activities and forms of action are open just because certain individuals in the organisation are members of political parties that are apparently subversive.
§ Mr. Bill Walker (Tayside, North)
If these organisations are known to have as members activists who regularly and constantly break the law, should they not be under some surveillance?
§ Mr. Thomas
I do not know what organisations the hon. Gentleman is referring to. Is the hon. Gentleman suggesting, as I think that he is, that CND is an organisation that is subversive because it dissents from the Government's defence policy? That is the kind of thinking that is motivating Conservative Members and many people in the security service.
§ Mr. Thomas
I shall not give way, as I must finish my speech.
We have to face up to a Government who are increasingly intent on targeting various forms of dissent. For some reason, the Communist party, which is a democratic party, is regarded as a subversive organisation. In the case of my friend John Cox, a vice-president of the CND and a long-time activist in the peace movement in Wales, his membership of the Communist party is apparently, according to Cathy Massiter in the "20:20 Vision" programme, sufficient reason for the Home Secretary to grant a warrant to have his phone tapped.
It is important that we should know what categories of people and organisations the Home Secretary is prepared to allow to be used in this way. If the practice that is being made legitimate in this Bill is the practice of tapping the telephone of a person such as John Cox, democratic politics in Britain are being undermined by the Government's activities.
§ Mr. Robin Corbett (Birmingham, Erdington)
As chairman of the parliamentary home affairs group, I wish to make it clear that we accept the need for interception of telephone calls and mail. Attempts from Conservative Benches to smear the Labour party and pretend that it is anti-police do not deserve serious treatment.
228 While we acknowledge the need for a Bill, this Bill does not do the job that it should set out to do. There are not the safeguards that the Home Secretary pretended. For example, with the proposed tribunal, who says that it is only five lawyers who have the wit and the wisdom to do the job? Why does the commissioner have to be appointed by the Prime Minister and report to the Prime Minister alone? If the Government are allegedly going down the road of more open government, why can they not go a step further and acknowledge the strength of the case for a special Select Committee, in line with that which oversees the work of the Ombudsman, to oversee the work of the commissioner proposed in the Bill?
I must explain to Conservative Members that one does not have to be paranoid to believe that it is possible for MI5 and the special branch—out of enthusiasm or something worse—to make mistakes and to step over the limit. In a constituency adjoining my own, there was the case involving Mrs. Madeline Haigh who wrote a letter to the newspapers protesting about the plan to bring in cruise missiles. As a result, flat-footed special branch officers came to crawl all over her house, play around with her telephone and knock on her door. The chief constable made a misstatement to the right hon. Member for Sutton Coldfield (Mr. Fowler) but, when the complaint was persisted with, he acknowledged that the officers had gone over the top.
In the film "MI5's Official Secrets" it was alleged that the application for the tap on the telephone of Mr. John Cox, the vice-president of CND, gave the reason that Mr. Cox was a long-term member of the Communist party and prominent in CND, and that it was desired to investigate his contacts and activities in order to ascertain whether the Communist party was manipulating CND in a clandestine manner.
The Home Secretary has assured us more than once, at the Dispatch Box and in evidence to the Home Affairs Select Committee, that mere membership of a lawful organisation that opposes the views of the current Government is not enough to justify him in signing a warrant for interference with telephone or written communications. I do not doubt that Government Members accept that view. In that case, why did the Home Secretary, in August 1983, allegedly authorise the tap on the telephone of Mr. John Cox?
§ Mr. Tristan Garel-Jones (Lord Commissioner to the Treasury)
Because he was a Communist.
§ Mr. Corbett
The hon. Gentleman cannot have it both ways. The Home Secretary has told us that mere membership of a lawful organisation is not enough to justify surveillance. Moreover, even if someone is suspected of being a subversive — if that is what membership of the Communist party means—there is the other test to be applied before the Home Secretary should sign the warrant.
According to the allegations in the film, the information collected as a result of the signing of the warrant was passed to the DS19 unit in the Ministry of Defence, which has been set up to counter the activities of CND. For the first time, a Government stand charged with misusing the security services for purely party political ends. The Government would do well to lay that allegation to rest. If it is untrue, it will cost the Government nothing to say so. My right hon. Friend the Member for Cardiff, South 229 and Penarth (Mr. Callaghan) made the point that, had he been Prime Minister, he would have jumped very smartly on the setting up of such a political unit in one of the great Departments of State.
One does not have to be paranoid to believe that things can go wrong. Little has been said about the interception of mail. I wish briefly to refer to some of the allegations. We know that, in London, intercepted mail goes to Union house at St. Martin's-le-Grand. Last year, CND had planned to hold a demonstration in London in June. They contracted with the Post Office beforehand to distribute some 76,000 items of mail to CND members. The Post Office agreed to a final delivery date of 31 May, but CND later received 100 letters from members complaining about the late arrival of mail. In some areas, the mail was not received until, on average, 21 June—more than a fortnight after the demonstration. We cannot dismiss all these people as mad—there are more than 100 of them. We should know because hon. Members get more mail than many people, that it is extremely rare to get a damaged piece of mail, but more than 100 members of CND did.
A standard letter to a national council member of CND in Northumberland, postmarked 14 September 1984, was received unsealed and with the flap open. A second letter, posted by the social services department in Bradford on 13 September 1984 was received torn open and unsealed. A letter to another national council member, who happens to be a general practitioner in Gloucester, was posted on 21 August 1984. It was the campaign newsletter mailing and it was received slit down one side, although the contents were intact. Another GP in Nottingham received a letter which was slit down the side. A second letter from an hon. Member was received on 8 September 1984, torn and readdressed from Huddersfield post office. It is no good saying these things cannot happen or that all the people involved are liars or worse. Because people in MI5 and the special branch can get over-enthusiastic, we ought to tread carefully when laying down a lawful basis for interception.
Group secretaries of CND in Salford and Manchester have reported:for the fourth time in one month packages from CND have been ripped open by the time they reach us".An organiser of Christian CND in London received on 23 November 1984 a National Westminster bank statement which bore a post office damage label and had been resealed at the back of the envelope. When the recipient queried that with the bank, the manager said that the statement was sent out in good order.
Earlier today, my right hon. Friend the Member for Morley and Leeds, South (Mr. Rees), a former Home Secretary, said outside the House that when he was Home Secretary he did not authorise telephone taps on the headquarters of the Fire Brigades Union during its dispute. I accept what he says, but people working in those headquarters believe that they have evidence of their telephone being tapped. One alleged in the "20:20 Vision" film that, on picking up the receiver to make a telephone call, played back into his ear was a conversation that he had had on that telephone a little earlier. Why should my right hon. Friend lie? Something is going on behind the Home Secretary. Some in the security services are acting without his consent.
Tim and Bridie Wallis live near Molesworth and object to the Government's nuclear defence policy. They have a perfect right to object to it. As the Home Secretary has said 230 several times, there is nothing illegal about that. On 31 January, someone dialled the Wallises' home number. After obtaining first the engaged tone and then the unobtainable tone—that would not happen now after privatisation — the caller was finally connected to an answerphone which said:This is Tim and Bridie Wallis's number. We are out at the moment. Please leave your name, address and phone number and we will ring you back".Asked to leave his address on the answerphone? He rang the Wallises' number twice more during a period of five days and each time got the answerphone. The voice on the answerphone was described as male, with an Americanised accent. The caller did not know Tim Wallis well, but knew that he spoke with an American accent. He therefore assumed that it was Tim's voice on the machine. The Wallises report that the telephone regularly rings once or twice and then stops before they can answer it.
I could give a list of people who have lawfully monitored cruise missile exercises around Greenham common but have found telephones out of order when they go to make a second or subsequent telephone call. We accept the need for surveillance — unfortunately — but this House must meet the genuine complaints of those engaged in perfectly lawful activities.
§ Mr. Tam Dalyell (Linlithgow)
A meeting was held in the county building at Linlithgow yesterday, sponsored by West Lothian district council, in which the National Coal Board, the NUM, NACODS and Lothian regional council members took part. I was asked a specific question about a specific statement that appeared in a well researched article by Nick Davies in The Observer on Sunday. It stated:the new direction of F Branch has forced MI5 officers to twist the definition of subversion in order to justify the new choice of targets"—in a manner that directly concerns a number of my constituents, not only in the mining industry.The most common practice is to charge it a non-subversive group by finding one subversive individual within it and using him as a pretext to study the organisation itself. The Scottish NUM, for example, which does not qualify as subversive, has been targeted via its president, Mick McGahey, who qualifies because of his membership of the Communist Party.I want to know—not necessarily in the reply tonight, but in a letter—whether Nick Davies is telling the truth or whether he has misunderstood the position. Many of my constituents are anxious to know the answer.
We will deal with many of Mr. Davies' other statements in Committee—for example, whether there are burglars of A1(A) or locksmiths and carpenters of Al(D). The difficulty is that there is a calm assumption that British intelligence can ignore the criminal law, and that is one of the central issues of the present controversy. It is no wonder that sensible people have become disturbed about the activities of British intelligence.
What exactly are the true responsibilities of MI5 and how does it set about fulfilling them? There is no statute to define the role of MI5; there is no statute even to register its existence. Its only constitution is a six-paragraph directive, referred to by the Home Secretary in his opening speech, secretly issued 33 years ago by the then Home Secretary, Sir David Maxwell Fyfe. That memorandum forms the minimum framework of rules, regulations and supervision. Such a code, if it were ever effective, has faded into a hazy twilight under the strain of increasing 231 Government demands for information about new targets — demands that many MI5 personnel, not necessarily all, given the sort of people that they often are, have been all too eager to comply with.
It is all very well for the Home Secretary to say in his opening statement that he and the Prime Minister are satisfied, that they take seriously the continuing duties, and various other anodyne phrases. We must ask whether they are in control. What is going on behind their backs—even if we assume that they do not know about it? MI5 has shifted since 1970 from being essentially a counter-espionage organisation, aimed at coping with the schemes of foreign powers, to a domestic surveillance organisation. I am told that MI5 now has 7,000 employees. If this is true, what in heaven's name does MI5 find all these folk to do with their time? Techniques and operations which had been acceptable when used against some supposedly "bona fide" enemy run a coach and horses through MI5's own directive and the laws of the land when they are turned on domestic targets such as the Campaign for Nuclear Disarmament or the National Union of Mineworkers.
The time for all hon. Members is limited, Mr. Speaker. Therefore, I should like simply to make one point at some length. It is to back up the argument of my right hon. Friend the Member for Manchester, Gorton (Mr. Kaufman) who said that there should be a good communications engineer on the tribunal. It is not sufficient for the tribunal to consist only of lawyers. There must be somebody on the tribunal who knows something about solid state physics.
During the 1960s, when the current network of electronic exchanges was being designed, the security forces insisted upon the incorporation of a facility known as TKO—for trunk offering. The technical details of this are in the public domain. I refer to the Post Office Electrical Engineering Journal 1971, which is familiar to my hon. Friend the Member for Newcastle-under-Lyme (Mr. Golding).
TKO works as follows. When one dials a trunk number —for example, 01 837 1234, the telephone number of The Times—the "0" gets one a trunk line at the exchange. This dispatches one's call onward through the network, tagged "1×837 1234". The "×" is one of four priority codes: call box, private phone, operator, or TKO. Thirdly, on receipt of a TKO tagged call the receiving exchange connects the caller into the addressed line without disturbing it. In other words, if the telephone is on the hook, one hears nothing. If it is in use, the person can hear them but they cannot hear him.
Since TKO is accomplished by means of solid state switching at the exchange, the only way to be sure that a telephone is clean is to check the appropriate board at the exchange with a tool known as a logic analyser. Even this does not guarantee that one's number will not receive a TKO a few seconds later. In particular, the patent machines sold to detect tapping by measuring line impedance are completely useless against TKO. I was foolish enought to invest in one. An authorised TKO is carried out using a monitor phone which looks a bit like a tape recorder with a numerical keypad on it. The operator thereof merely taps out the desired number and listens or records as desired.
232 More than 1,000 monitor phones are currently in use. Authorised users include, of course, GCHQ, the police and the security services and also such seemingly innocuous bodies as the Inland Revenue and Customs and Excise. In addition, all exchanges have a monitor facility built into general equipment. This is routinely used by operator supervisors and maintenance engineers who may often informally supply intercepts to local end users.
Worst of all, because of the huge number of British Telecom technical employees and staff in supplier firms who must have access to the basic telephone system specification, and because of the article I have already mentioned in the Post Office Electrical Engineering Journal, there are at least 100,000 people in Britain with the knowledge and expertise to construct an unauthorised monitor phone.
The principal use of these is in hacking, or gaining unauthorised access to computer data, in particular in order to break into somebody's mailbox in Telecom gold. The hacker does a TKO on the victim, not on the gold, and then records the victim's log on code next time he accesses his mailbox. That is the technical position. I shall not go on about it other than to say that there must be people on the tribunal who are capable of looking at the mechanics of what is being done. Lawyers, although they are necessary, could be simply putty in the hands of those who want to get away with things that they should not be getting away with.
My interest in this matter has been aroused particularly by the case of the late Hilda Murrell on which I spoke during the debate on the Consolidated Fund. It is important for Ministers to understand that suspicions have arisen in the minds of many hon. Members who have been in the House for 20 years or more, which would not have arisen before, because of the complete breakdown of consensus politics. Those of us who would have accepted a ministerial word—Conservative or Labour—as a man's bond in previous Parliaments can, because of recent events, no longer do so. That is the breakdown in political trust which is afflicting Britain. Therefore, we may be forgiven for being far more suspicious of Ministers than we would have been previously.
§ Mr. Kevin Barron (Rother Valley)
The debate has been in some ways wide of the mark when one considers the Bill. I make no excuse for some of my opening remarks. There are two major reasons why speeches have not been directed straight at the Bill, both of which I understand. First, there has been the Bridge report and the recent public comment in the media, both on television and in newspapers, on surveillance and Britain's security service in relation to the Bill. Secondly—the Minister accepted this in his opening speech—the omission of other types of surveillance from clause 1 means that this is a narrow Bill. Recent events in the media suggest that the Government have sought to whitewash the interception of communications, and I share that view.
The Government asked Lord Bridge to do in five days what it would have taken any Select Committee or other group of hon. Members weeks and weeks to do—to look into the allegations made in a television programme, stretching back over 14 years, on how telephone calls are intercepted and how people are surveyed. Many suspicions 233 have been brought to fruition in a programme that was temporarily withdrawn from the television screens of the British people.
No individual can sort and obtain from the Home Office and security service all the documents which could be of assistance in determining whether the issue of a warrant was justified. That would be impossible for anybody to undertake in five days.
Lord Bridge's final comment—that he was satisfied after a full examination of all the relevant documents that no warrant for interception was issued in contravention of the appropriate criteria—must leave every right hon. and hon. Member with many question marks in their minds. Questions will remain about the contents of that programme and whether there were official phone taps.
I can honestly and earnestly believe why the Home Secretary would refrain from commenting in the House on many matters in relation to major crimes such as drug pushing or many issues that would undermine the national interest and why the Bill will not open the door for those involved in such crimes to check what is happening. But I cannot for the life of me understand why the Home Secretary has not commented seriously today on the allegations that were made in that television programme in relation to matters which I think all hon. Members will agree pose no threat to national security. Yet nothing has been said. We have only two paragraphs in the Bridge report, which was passed from the Prime Minister's office to my right hon. Friend the Leader of the Opposition.
My hon. Friend the Member for Linlithgow (Mr. Dalyell) mentioned that public comment is being made about the demise of our security service. He pointed out that many others also believe that in the past 14 years this country has changed from surveying foreign powers and their involvement in Britain to surveying members of the public.
It has been alleged—I accept it—that Jack Jones and Lord Scanlon, a member of the other place—were put under public surveillance in 1972—
It being Ten o'clock, the debate stood adjourned.
Ordered,That, at this day's sitting, the Interception of Communications Bill may be proceeded with, though opposed, until any hour.—[Mr. Garel-Jones.]Question again proposed, That the amendment be made.
§ Mr. Barron
I repeat that Mr. Jack Jones, who was then general secretary of the Transport and General Workers Union — a much honoured man, who since retirement has fought on behalf of the pensioners and of their rights — and Lord Scanlon were put under surveillance by MI5 in 1972 by the right hon. Member for Old Bexley and Sidcup (Mr. Heath), who was then Prime Minister.
In the 1980s, MI5 began to survey the peace movement. No one with any sense would say that CND could be described as a threat to national security or that, for example, the chairperson of Christian CND, who works at CND headquarters, is any sort of subversive. Yet allegations have been made daily on television and in the press about how people have been surveyed in one form or another.
On 10 March, an article appeared in The Observer, in which Mr. Nick Davies commented in great detail on MI5. 234 As his article is important to the Bill and is relevant to what many other hon. Members have said, I shall quote it. He says:As the line between security and politics became more blurred"—in that 14-year period—F Branch grew and took on new responsibilities. The old simplicity of studying the Communist Party and overtly fascist groups was replaced by a complex array of targets, reflected in the branch's current structure.The old targets—the Communist party and the Communist front organisations such as the World Peace Council—occupy two sub-sections, F2(C) and F2(D). Trade unions are studied by F2(N) with its increased staff. Teachers, students, pacifists and MPs"—I understand that to mean Members of Parliament—are to be the job of F2(R) which has recently completed special projects on journalists and lawyers".If what Mr. Nick Davies and many other well-respected commentators have said about the past 14 years is true, we must ensure that all hon. Members and all members of the public are protected from such activities by strict guidelines and by a measure of accountability.
My right hon. Friend the Member for Manchester, Gorton (Mr. Kaufman) read out a list of items from Exchange and Mart. That publication comes out weekly and such items are commonly available for people to buy. The items demonstrate that surveillance and tapping can be carried out not only by those involved in the security network, such as members of MI5, but by citizens or Members of Parliament who want to pry into their neighbours' affairs or into, perhaps, what is going on in the adjoining office in this House.
The Bill and clause 1 fall far short of giving any security to people. I should have liked the Bill to be far wider. Many people have discussed controls. In 1970, a committee on privacy under the chairmanship of Sir Kenneth Younger was set up to consider whether legislation was need to further protect citizens, commerce and industry against intrusions into privacy. The committee recommended that the unlawful use of technical device for surreptitious surveillance should be a criminal offence. Clause 1 should be extended to include that.
The Law Commission on breach of confidence recommended that a civil course of action should be available to any individual whose personal privacy had been invaded by the use of the surveillance device. That should also be in the Bill. We should have a far more comprehensive Bill. Hon. Members should be in a better position to take wiser decisions about surveillance and the use of the security forces.
I do not know how hon. Members can interpret exactly what is meant by the three paragraphs in clause 2(2). One of them relates to national security. The hon. Member for Bury St. Edmunds (Mr. Griffiths) talked about terrorism. No hon. Member would in any way weaken the resolve of the security forces or any organ of the Government to stop and stamp out terrorism and the awful scenes that have for a long time resulted from it. The second paragraph relates to serious crime. No one would wish to claim that people involved in serious crime or in bringing hard drugs, such as heroin and cocaine, into the country, which lead to the death of those who have been led mistakenly to use them, should not be under surveillance. All hon. Members will agree that constant surveillance is necessary, and that when they are found to be guilty of such terrible crimes, people should be brought to justice.
235 The third paragraph relates to economic well-being. We must ask what that means now, what it will mean when and if the Bill in its present form becomes law, and how Governments will interpret it in future. It is clear from the allegations made by the media during the past two or three weeks that we must question exactly what "economic wellbeing" means. It has been alleged that the telephones of Mr. Arthur Scargill and Mr. Mick McGahey were tapped in the late 1970s, presumably because of what happened in 1972 or 1974. Was that because that was against the economic well-being of the country? At that time I was a working miner, and I can assure the House that I did not think so. Those actions gave me a decent wage for what all hon. Members believe to be a dark, grimy and dangerous job. The national interest was well served in recognising what the miners wanted and in giving it to them.
It is alleged that in 1978, not under the present Government, Mr. Fred Harraway, the chief shop steward of Ford at Dagenham had his phone tapped because people wanted to know what his bottom line was in the Ford pay dispute. That would have interested everyone, but was the tapping for the well-being of the country? I would be worried if that were described as in the national interest or as looking after the economic well-being of the United Kingdom. I would find it difficult to support any Administration that was prepared to put to the test the rights of British people to their freedom to decide the price of their labour.
If those allegations are true, we must ask what clause 2 is about, even though the Bill represents only a small part of surveillance. I am not happy with these bland statements about economic well-being and national security. We must have more debates about them, and that is one reason why I shall vote against Second Reading.
Another reason why I will vote against it is clause 3ߞ
§ Mr. Hickmet
Of course, clause 2(2)(c) would allow the surveillance of meetings between, for example, the leadership of the NUM and Colonel Gaddafi in Libya, would it not?
§ Mr. Barron
We could discuss the economic wellbeing of this country and the £19.1 million a year trade surplus that Britain has with Libya. If the hon. Gentleman wishes to take me down that path, he should apply for an Adjournment debate on it, and I shall take 15 minutes of his time to talk about Britain and Libya, whether in relation to the NUM or McAlpine or other people involved with the Conservative party and Libya for many years.
§ Mr. Norman Buchan (Paisley, South)
I was on the telephone tonight to Mrs. McGahey to inquire about and send good wishes to Mick McGahey after the serious attack upon him, and no doubt, because of that sort of attitude, we were being monitored.
§ Mr. Barron
I hope that Mick McGahey recovers well from that attack. We read in the media about supposedly sniggering remarks made about Mrs. McGahey's telephone conversations with her friends when people were trying to find out where Mick McGahey was at any one time. If that happened, it was an infringement of the civil liberties of an individual. I hope that all right hon. and hon. Members will stand up and say that our civil 236 liberties should not be ignored. They must be protected at all times within certain parameters. I have described some people in this country whose civil liberties I would not protect, but the areas must be clearly defined.
Clause 3 deals with the scope of the warrant. This is obviously the area where the Home Secretary needs some flexibility and some control, if that is not too harsh a word for some hon. Members. We must have clearly defined areas where people can and cannot go. If there is to be any accountability, whether to a commissioner or to a tribunal, this is an important clause. Clause 3(1)(a) talks aboutsuch communications as are sent to or from one or more addresses specified in the warrant.Paragraph (i) talks aboutone particular person specified or described in the warrant",and paragraph (ii) talks aboutone particular set of premises so specified or described.Those provisions are tightly drawn, and many people here would say, "We have some control because a Home Secretary can say what the security services can intercept." But subsection (b) talks aboutsuch other communications (if any) as it is necessary to intercept in order to intercept communications falling within paragraph (a) above.It is a catch-all phrase. In effect it means that we can move away from those three specific areas to widen the scope of warrants. I hope that in Committee the House will give serious consideration to clause 3 and decide that the provisions of paragraph 1(b) should not be enacted.
I deal next with clause 7. I am sorry that the hon. and learned Member for Burton (Mr. Lawrence) is no longer present. He spoke earlier wearing what he described as work wear—the black waistcoat, the black jacket and the pin-striped trousers that are worn at the Temple. He spoke of the five members of the tribunal being selected from barristers, advocates or solicitors of not less than 10 years standing. We have already suggested the possibility of a trade union official or other people in society who could adequately sit on the tribunal. The hon. and learned Member for Burton said that the five members should be chosen from this famous closed shop which has existed in Britain for many years—as I understand it, the only one that is not under attack from Government legislation. The hon. Gentleman suggested that these members should be selected not from among those with parliamentary responsibility but from members of the senate of the inns of court and the bar. It might be more relevant if they were selected from the bar golfing society, which I understand is very good just now at picking judges. The president or the secretary of the bar golfing society might be in a better position to select members to sit on the tribunal.
I believe, as I understand my party believes, that the five people of the tribunal should be selected more widely than has been suggested. The tribunal will have a difficult but important job to do if civil liberties, about which hon. Members speak frequently, are to be protected. I believe that these five people should have a wider background than the law. They should be the standard bearers. We would entrust them with a great deal of responsibility for the individual liberties of us all, be it Members of Parliament allegedly under surveillance by MI5 or F branch, or members of CND, trade unionists or any other group in society allegedly under surveillance.
Clause 8 states that the commissioner would be responsible for reporting to the Prime Minister and issuing an annual report to Parliament. It also states that the annual report will have to be vetted, and certain matters omitted 237 for reasons of security. I understand and accept that it is not possible to place before Parliament everything that has happened in a 12-month period. However, in the protection of the civil liberty of every citizen, I suggest that the parliamentary accountability of a commissioner should go wider than the office of the Prime Minister. This accountability should be similar to that of all right hon. and hon. Members who serve on Select Committees and make submissions in confidence which they request should not be for publication. In Committee, I hope that an amendment will be tabled requiring that the annual report of the commissioner be placed before a Select Committee of the House and be subject to questions. This would meet the allegation made in the programme "20:20 Vision" that the Secretary of State was using material gained in a subversive manner from the headquarters of the Campaign for Nuclear Disarmement.
By acting in that way, it would not be possible for the Prime Minister of the day to be accused of political bias when considering those annual reports. Discussing the matter in confidence, a Select Committee could ensure that those involved in our security services did not go beyond the guidelines laid down by Parliament to protect the rights of the individual.
I shall vote against the Bill at this stage, not because I do not want satisfactory security for the nation and its citizens but to ensure that their rights and freedoms are upheld. If the Bill is read a Second time, I hope that in Committee hon. Members of all parties will joint to amend the measure to ensure that the rights of individuals are fully protected.
§ Mr. Alex Carlile (Montgomery)
The hon. Member for Birmingham, Erdington (Mr. Corbett) concentrated on the question of safeguards and scrutiny. Our aim must be to ensure that the Bill provides the right safeguards against unreasonable telephone intervention and the right form of scrutiny to discover whether there has been improper interception of communications.
With that in mind, I welcome this opportunity to consider legislation designed to set acceptable limits on the interception of telephone conversations. For many years we have read in the press, and in the debate we have been told, stories — many of them anecdotes, often unsubstantiated — about alleged unlawful telephone tapping.
Over the years, on a few occasions, people have told me that they either worked for or had in the past been employed by MI5. I have not believed any of them. I doubted whether they would have been working for MI5 had they been prepared to give that information.
However, we have recently—this has been the value of the "20:20 Vision" programme — had what can fairly be described as being in the category of evidence which has concentrated our attention on the real issues behind our scrutiny of the Bill. That has been the value of Miss Massiter's revelations.
If they be true I know not. I do not have the advantage which, for example, the right hon. Member for Morley and Leeds, South (Mr. Rees) has of having known someone who was named in that programme as having been a spy for MI5. Nor do I have the advantage or otherwise of knowing whether Miss Massiter was speaking the truth. 238 However, the issues raised by the programme were sufficiently serious and were put objectively enough to call for close attention.
I welcome not only the Bill but the opportunity it gives for the House to consider the whole issue, although I do not welcome all of its provisions. I welcome, too, the fact that the Government have decided to accept the judgment in the Malone case to the extent of incorporating the terms of article 8 of the European convention on human rights in the measure.
We must, however, bear in mind —I am surprised that this has not been pointed out in the debate—that article 8 is now of some antiquity, having been drafted and agreed to in the immediate nervousness of the years shortly after the last war. If one reads that article with care now, one wonders whether it needs some redrafting and tightening, whether it is not too broad and whether, unfortunately, that breadth is not reflected in the Bill.
The Bill arrives in the context of a wealth of criticism of the diffuse state of the law on surveillance and privacy. We have had a number of reports that have severely criticised the state of the law, or in some cases the lack of any law on the subject. If one looks, for example, at the Philips Royal Commission on criminal procedure, one notes in paragraph 3.57 a recommendation that. is not included in this Bill and which in my opinion should have been. It is this:We therefore recommend that the use of surveillance devices by the police (including the interception of letters and telephone communications) should be regulated by statute. The specific practices subject to regulation should be set out in secondary legislation to enable new techniques to be incorporated as they are developed".That recommendation, not incorporated in this Bill, goes very much beyond telephone tapping and interception of the mail. It deals with all surveillance devices.
We know of the Younger committee on privacy, which recommended that there should be a right of action in the civil courts over unwanted telephone tapping and also the use of surveillance devices.
The Home Secretary, in answer to an intervention of mine which I feel would perhaps have come rather better from the Tory Back Benches in the circumstances, said that the Government intend, as I understand it, to introduce legislation following the recommendation of the Law Commission on breach of confidence. I hope that we shall hear more about that from the Minister of State when he winds up, because it seems to me that that undertaking, welcome though it is, goes only so far and not far enough in adopting the many recommendations in at least the three reports I have mentioned, which deal with the whole question of the interception of communications of all sorts and interference with privacy. And, of course, a much more modern concern has arisen — the possible intervention in communications which are sent by electronic means, by computer.
I agree with what was said by my hon. Friend the Member for Caithness and Sutherland (Mr. Maclennan) about the way in which the scrutinising of telephone tapping should take place. Unless we hear something much more convincing from the Home Secretary, given that the reports to which I have referred were prepared some years ago, the House can only deplore the failure to provide a package of legislation dealing with the whole question of privacy and surveillance.
The Malone case gave rise to this Bill, but although the Government appear to be seeking to provide an answer to 239 the complaint which was found justified in that case and although I accept, of course, that the right hon. and learned Gentleman the Home Secretary believes that the Bill provides an answer to that, I wish to draw the attention of the House to clause 9.
Mr. Malone was charged with a criminal offence of dishonesty. During the course of the case his counsel was cross-examining a policeman and, as counsel sometimes do, he asked to see the policeman's notebook. In that notebook there was a cryptic reference which did not make any sense in the context of the evidence which the police officer had been giving. After some thought, counsel rightly tumbled to the fact that it was a reference to the tapping of Mr. Malone's telephone. It was that discovery by counsel that led to the case going through the British courts and ending up in the European Court of Human Rights.
Under clause 9 of the Bill, counsel for Mr. Malone, who cross-examined the police officer and obtained an admission from him that Mr. Malone's telephone had been tapped, would no longer be able to ask those questions. It is not entirely clear that that is the case, because a person who cannot be asked questions of that sort in court includes any person holding office under the Crown.
As the Home Secretary knows, one could fill volumes of legal textbooks with arguments, judgments and speeches in the House of Lords, in its judicial capacity, which have dealt with whether a policeman holds office under the Crown. However, that begs the question, because whether or not counsel could ask the sort of question that was asked in the Malone case of a police officer, there is a wealth of cases in which, under the Bill, it would not be possible to conduct such cross-examination —for example, prosecutions by the Inland Revenue or, perhaps more in context, prosecutions by Her Majesty's Customs and Excise, for there is no doubt that Customs and Excise officers are persons holding office under the Crown.
Therefore, it seems to me that the goal which was the aim of the legislation in principle, and which led to the legislation being introduced, is missed by a mile because of the provisions of clause 9. I hope that we shall receive an undertaking that the Government will look with great care once again at clause 9 so that the legislation, if enacted—perhaps one should realistically say, "when enacted"—includes clear provisions that will ensure that if a situation similar to the Malone case arises in court, counsel will not be stopped by an artifice from pursuing the matter.
Another matter to which I should like to refer is the definition of "serious crime" in the Bill. Under its provisions, the Secretary of State can issue a warrant if he considers it necessary.
for the purpose of preventing or detecting serious crime".Many hon. Members were most grateful to the Home Secretary for accepting so many interventions in his opening speech, which enabled the debate to get off on a useful basis, and to a constructive start in which all the questions were raised. During an intervention of mine, I asked whether "serious crime" would be defined, and referred to the Police and Criminal Evidence Act, in which the term "serious arrestable offence" is defined. The Home Secretary's answer appeared to be that we could not put that definition in the Bill because "serious arrestable 240 offence" is not the same as "serious crime". At last we have managed to persuade the Government, as many of us tried to do throughout the debates on the Police and Criminal Evidence Bill, that the term "serious arrestable offence" includes many trivial non-serious offences that happen to be arrestable. I see that the Home Secretary is shaking his head. Perhaps he will agree with this at least. It is important that some effort should be made to define "serious crime" in the context of this Bill so that parameters are set whereby the Secretary of State knows what "serious crime" is before he considers the issue of a warrant.
Something that has not been mentioned during the debate, but which is of extreme importance, is schedule 2. It is substituted for section 45 of the Telecommunications Act 1984. It deals with the position when a person who is engaged in the running of a public telecommunications system — an employee of British Telecom or Mercury for example — intentionally discloses to someone either the contents of a telephone call or information concerning the use made of a telephone. We all know in the House that industrial espionage that involves serious intervention with personal privacy is becoming almost endemic in certain parts of industry. Yet when we look at schedule 2, containing the new section 45(4) of the 1984 Act, we find that a BT or Mercury employee who, for example, gives to an industrial spy details of all the telephone numbers rung up by a particular person, say the managing director or chairman of a public company, will be subject, even on conviction on indictment, only to a fine. An unduly lenient view seems to have been taken of that.
The Government should reconsider the penalties. It is unacceptable that an employee of British Telecom, for example, should be subject only to a fine in those circumstances. The stakes are so high in industrial espionage that those who persuade the employee to give the details either of the conversations or of the general nature of calls made by a particular person will not be put off by the prospect of a fine. It is unrealistic.
In regard to the powers of the tribunal, it will be able to investigate complaints but it will not inform a complainant whether surveillance is being carried out unless the tribunal decides that the procedure for authorising and renewing warrants has not been complied with. That is what it amounts to. The powers of the tribunal are virtually purely procedural.
The problem arises because the test that the Secretary of State has to apply before authorising an interception is wholly subjective. The tribunal will have to decide whether the Secretary of State in good faith considered that the warrant was necessary. If it decides that the Home Secretary in good faith considered that the warrant was necessary, that will be the end of the matter for the tribunal. That is what clause 2 says. That provision requires major amendment so that the tribunal will be able to scrutinise not whether the Home Secretary considered in good faith that the interception was necessary, but whether the interception really was necessary. Such an amendment would make the tribunal far more effective because it would be able to decide on the merits of the case.
In regard to the procedural provisions and the question of judicial review of the tribunal, the tribunal can make its own rules. That is what the Bill says. It is unlikely, having regard to the nature of the tribunal, that it will provide 241 rules which conform to the rules of natural justice. Indeed, the essence of the secrecy which underpins the tribunal is that it will have to defy the rules of natural justice. Also, the individual or company feeling aggrieved by possible unlawful interception of communications will not be able to apply for judicial review of the tribunal's conduct or the way in which the tribunal approached the case, even on the ground of legal procedures.
The rules of natural justice, therefore, are not applicable to the tribunal—a most unusual situation in the context of the legal philosophy and jurisprudence of the country. Over recent years, the borders of administrative law and judicial review have been extended most helpfully on occasions by the Court of Appeal; that has been confirmed by the House of Lords in its judicial capacity. The provisions of the Bill in relation to judicial review and administrative law show a surprising, unattractive and even painful regression to those of us who wish to see the law continuing to develop in that sphere.
I invite the Government to consider carefully the whole procedure and structure of the tribunal in order to provide something, whether a tribunal of this sort, a special Committee of the House or whatever, which will ensure that at the very least the rules of natural justice—the most basic of legal rules—can be complied with.
§ Mr. Austin Mitchell (Great Grimsby)
The passion shown by Labour Members tonight is not a passion about the Bill, which is a pathetic, futile measure, but about the freedom of the individual and his rights and liberties, and in particular the right to privacy. I find it extraordinary that Conservative Members, who have demonstrated such passion in favour of the right to have one's teeth rot, or the right to go headfirst through a windscreen, or the right to have one's head bashed in because one does not want to wear a crash helmet, have not shown more passion on a subject that is of vital importance — the right to privacy and freedom, and the civil rights of individuals.
The origins of the Bill show how pathetic it is. It was forced on the Government by the Malone case, yet closes up the loophole shown by that case so that it could not happen again. It pretends to conform to European practice, but does not do so. Having foisted this farce on us, the Government have taken the credit, and said, "Aren't we magnanimous in providing regulations for phone tapping?"
I speak about the measure from an ordinary, commonsense point of view. I know that in some political circles it is a demonstration of virility to have one's phone tapped. Indeed, when I learned that phone tapping improves the phone service and gets rid of the normal crackle, I almost wanted my phone tapped and wondered whether appeals to the tribunal will come from people who find that they are not getting the normal crackling service from BT, but a good service, which shows that the phone is being tapped.
The unfortunate thing about this Bill is that it tackles only a small part of the problem, and that inadequately. It leaves aside bugging, electronic eavesdropping, and all the devices about which we have heard. Essentially, it is setting out to regulate canal traffic in the age of the high speed train and the motorway. It deals with one, unimportant, part of the problem. The Bill should regulate the use of devices overall and provide for a right to privacy.
242 Secondly, the Bill covers only a small part of interception—the monitoring of transatlantic calls and of overseas telegrams, the activities of Menwirth hill in monitoring calls in this country. I see from the 1980 figures of the number of people involved in tapping in MI5 that the Ebury bridge office, which I gather is known as Tinkerbell because of its activities in tapping phone calls, has 140 staff. However, in that year, there were 440 interceptions. What rate of productivity is that in the new Britain? They cannot all be listening to the interminable conversations of Mrs. McGahey over the telephone.
The Bill does not even regulate many of the manifestations. It does not regulate what is regulated elsewhere in Europe—the provision to the police and the security services of listings of telephone calls made. The customer finds it impossible to get out of BT a list of the calls that he has made, but such information will be freely available, to the security services, with the intrusion of liberty that is implied in that.
The Bill fails to deal with the problems. It is a buggers' charter because it pretends that the whole situation can be regulated and gives an appearance of confidence and respectability. It claims that all is well, and that the Government are tackling the problem without controlling it. However, the fundamental problem is the nature of the security services, particularly MI5. One has to talk about it on the basis of the hints and leaks in the programme last week because we do not have the information. We need more information about what is going on.
I remember that in New Zealand, the security service was listed in every telephone book. One could ring up and turn in one's friends for fun and profit, and that might be appropriate. On one occasion, I rang the head of the security service and invited him to be on television. He said, "Yes, marvellous, I would love to be on television." He came round. We could do with that degree of openness in our security service, especially when we react of allegations that the cost of security amounts to £1 billion per annum. What are we getting for that expenditure and how many are employed in the service?
It appears from "20:20 Vision" that the service is getting out of control in certain crucial respects. It seems that it is overstepping the limits within which it should operated. That must be so, in the light of recent problems. If those in the service are to fulfil the role that the Secretary of State has prescribed for them, they must be paragons of virtue, fellows of All Souls and men of the highest intellect and integrity, if not High Court judges. But we know that that is not always their nature. For example, we have the extraordinary Bettaney case. Bettaney was recruited for lunatic Right-wing politics at Oxford. Presumably he could not become a Conservative Back Bencher, so he became a member of the security service. He worked in one of the most sensitive parts of MI5 when he was arrested for drunkenness. It is reported in The Sunday Times—it must be true if it is in The Sunday Times—that on one occasion he ran down the street shouting, "I am a spy, I am a spy." Two weeks later he was accused of fare-dodging on British Rail. That was one of the paragons of virtue who was upholding the delicate balance between the freedom of the individual and the efficiency of the service.
That cannot be right. The service is secret and because of that it develops its own attitudes, mentalities and systems and proceeds to function in its own way. The Home Secretary assures us that the allegations against the 243 service are not correct, but how does he know that that is so? How does he know that MI5 is not making unauthorised taps? Why was Lord Bridge not asked to inquire into that?
If the service functions in the way that a priori reasoning would lead one to assume, it must be difficult to control. It must be impossible to tell whether it is functioning in an unauthorised fashion. The allegations made in "20:20 Vision" need specifically to be confirmed or denied. The programme presented a horrifying picture of a service that was overstepping the limits of its responsibility. It has been tapping those who are Communists who are now in CND and those who were Communists many years ago, who are active in trade unions and the National Council for Civil Liberties.
Most of the allegations of tapping had surfaced before the programme in the form of complaints by the individuals concerned. It is only now that they have been confirmed by the programme. The Home Secretary owes it to us—"20:20 Vision" coincided with the Bill—to tell us whether the allegations are correct. Until he gives us a positive assurance that they have been inquired into and that they are correct or incorrect, his word on other parts of the Bill must be suspect.
The allegations of tapping have a ring of truth, and Miss Massiter was convincing. The allegations tied in so well with the evidence that had come to the surface previously that they had every sign of truth. They present the picture of a service which is exceeding its powers and acting out of control. That is dangerous because the political climate that is developing is such as to encourage the service to function in that way and to behave accordingly. It is true that there were excesses under the previous Labour Government, to our shame, but that Government consisted of solid men and Ministers who were trusted as men of integrity — for example, my right hon. Friend the Member for Morley and Leed's South (Mr. Rees) and prickly individualists who were concerned for civil liberties. How much more dangerous is the situation under a Government with an overwhelming majority? That is in itself an incentive to cut corners, to relax the strict rules and to use power.
We have a Prime Minister who believes that she alone, and those who think like her, have all the answers and the key to truth. She has turned the Punch slogan "That's the way to do it" into a system of government and believes that 244 those who oppose her are not so much misguided as sinister. She wants to work only with those who are "One of us" and believes that there is an enemy within. If such a climate is being set at the top, it is inevitable that the security service, which is difficult to control because it is closed and secretive, will overstep acceptable limits.
Such a danger will not be controlled by the Bill. Moreover, it will be worsened by the bitterness, confrontational politics and ideological tone that has crept into politics under the Government. Confrontation permeates everything where before there was harmony and trust. We have the very reverse of St. Francisism. The atmosphere of bitterness and antagonism has permeated the police, as can be seen from the treatment of the miners' strike. It is permeating the press and must permeate the security service. That alone can explain the aberrations that we saw in the "20:20 Vision" film.
Do we really need our security service? Is it worth £1 billion, or one tenth of the tax revenue from North sea oil? I know that it is conventional to say that we need it as a manifestation of our being a great power. It is one of those delusions of grandeur from which we suffer. Even if we need it for state security, to combat terrorism and certain extreme forms of crime, it must be admitted that the abuses of the service endanger those very ends. The entire system of interception and bugging thus becomes odious in the public eye.
Once MI5 extends its brief to domestic politics and taps the phones of members of CND, trade unionists and members of the National Council for Civil Liberties, Friends of the Earth and Shelter, and it passes information about the political background of CND on to the DS19 section in the Ministry of Defence, to be spread thence to the Daily Mail and the Daily Express, thus speaking to the people, we are on extremely dangerous ground. It is dangerous because the system comes into disrepute.
In a modern pluralistic society, we are all dissenters. Whether it is on the bomb, the environment, fluoridation, women's rights, animal rights or Welsh nationalism, most people are rebels in some way. They can feel threatened by a service that is extending itself. The danger is that our political debate and system is coarsened. The rights of one are the rights of all. The threat to the privacy of one's telephonic communications or civil rights is a threat to the privacy and rights of all. That is what this debate is about and why there is such passion on this side of the House. Because we are all dissenters and rebels, the Bill and the system leave a nasty taste in the mouth.