INTERCEPTION WITH A WARRANT

HC Deb 08 May 2000 vol 349 cc582-90

Mr. Simon Hughes

I beg to move amendment No. 60, in page 7, line 26, leave out "the Secretary of State" and insert "a judge".

Mr. Deputy Speaker

With this it will be convenient to discuss the following: Amendment No. 61, in page 7, line 45, leave out "The Secretary of State" and insert "a judge".

Amendment No. 62, in page 8, line 9, leave out "the Secretary of State" and insert "a judge".

Amendment No. 63, in page 8, line 30, at end add— (7) The Secretary of State shall by order set out the procedures by which judges shall be selected for the purposes of this section. (8) The Secretary shall not make an order under this section unless a draft of the order has been laid before Parliament and approved by a resolution of each House.'. Government amendment No. 64.

Amendment No. 6, in clause 6, page 8, line 44, at end insert— '( ) the Chief Executive of the Benefits Agency;'. Government amendment No. 22.

Amendment No. 1, in page 9, leave out lines 4 and 5.

Government amendment No. 23.

Amendment No. 2, in page 9, line 14, at end add— '(6) An interception warrant shall not be issued in respect of any application made by or on behalf of a Permanent Under Secretary of State in the Ministry of Defence unless it has been authorised by a Secretary of State other than the Secretary of State for Defence'. Amendment No. 3, in clause 7, page 9, line 18, after "official" add 'who may not be an official responsible to, or subject to, the direction of the person applying for the warrant.'. Government amendment No. 27.

Mr. Hughes

It would be unreasonable to say that the amendment breaks new ground. Not only did the Committee discuss who should authorise interception with a warrant; my reading of what was said then shows me that the Minister knew that we had engaged in a similar debate during the Committee stage of the Terrorism Bill, and on the Floor of the House. I was only mildly miffed to note from the report that my hon. Friend the Member for Sheffield, Hallam (Mr. Allan) had done so much better than me in putting the case; I am only sorry that he cannot be here tonight to put it even more wonderfully.

In the debate about who should be able to authorise an interception with a warrant in areas that are clearly important to the public, the interesting question is whether the division of powers means that it is better for the warrant to be issued by a politician—however quasi-judicially he may act—or by a judge. We have argued in regard to this Bill, as we argued in regard to the Terrorism Bill, that a judge should give that authority.

The second sub-debate concerns the sort of judge who should be involved. Having read the report of the Committee debate, I appreciate that a judge picked at random from the whole range of circuit judges, with no particular experience, might not command sufficient confidence. That is why amendment No. 63 suggests that the judge should be selected for the purposes of this section. I suggest not only that there should be a panel from which the judge to authorise a warrant for interception is drawn, but that the panel should consist of senior judges. If the Government conceded the principle and we embarked on a debate about what sort of judge should be involved, I would argue that it should be a High Court judge rather than a circuit judge, because an application of this kind is not sought or granted all that often.

8.30 pm

The Government have argued that this should be a political, though quasi-judicial, decision. Although that has not been the unanimous view even of Conservative Members, in Committee the right hon. Member for Penrith and The Border (Mr. Maclean) and others favoured a decision on the part of the Executive, on the basis that the judiciary could then be used to review the Executive's decision. I understand that argument. Our only core reason for believing that appropriately qualified, appropriately senior judges would be better is the fact that they not only are, but are seen to be, independent of political pressures.

We are deciding who should authorise the interception of people's communications and, indeed, the invasion of people's privacy. We believe that, because this will often involve the organ of the state acting on behalf of, and accountable to, Ministers—frequently to the Home Secretary if the intelligence services are involved—it is better to separate the agencies who seek the authority from the person who gives that authority. It is a straightforward case; we have made it before, and I hope that I have made it sufficiently clearly today. It applies to amendments Nos. 60, 61 and 62. Amendment No. 63 both provides for the process by which judges are selected, and provides that the order should be laid before both Houses of Parliament and require a positive resolution procedure.

We welcome amendment No. 64. I understand that the Government tabled it after hearing my right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith) argue that there was confusion, and a potential conflict of interests, with the original proposal that, in relation to the Ministry of Defence, the decision should be made by a Parliamentary Under-Secretary of State for Defence—a Minister. He argued—and we are grateful to the Government for accepting his argument—that the decision should be made by the head of the relevant service: the Chief of Defence Intelligence. My right hon. Friend spoke on the basis of his experience and as a member of the Intelligence and Security Committee, and we are glad that his suggestion was accepted.

We oppose amendment No. 6, tabled by Conservative Members.

Mr. Heald

Shame!

Mr. Hughes

It is not a shame at all; it is a shame that the amendment was tabled.

There seems to be a dichotomy, a dilemma and a contradiction in the Tory party. The Tories are concerned about excessive powers in the Bill: their reasoned amendment, which we shall debate on Third Reading, puts that case. We have similar concerns—although we do not draw the same conclusions about how to proceed at this stage—but we do not think that the specific additional person who should have power to pry into people's affairs and intercept communications should be someone from the Benefits Agency. Benefit fraud exists, as does tax fraud and other fraud in society, but we must ensure that we authorise clearly, for particular purposes, the interception of communications.

Clause 6 sets out not only individuals and persons who are entitled to make the application in this country—they are the heads of various services: the Security Service, the Secret Intelligence Service, GCHQ, the National Criminal Intelligence Service, the Commissioner of Police of the Metropolis, the Chief Constable of the Royal Ulster Constabulary, other chief constables, and commissioners of Customs and Excise; the head of defence intelligence is added in amendment No. 64—but the heads of the competent authorities elsewhere.

Then we have the debate about whether the Secretary of State should have the power to add or not to add to those people. The Conservative party wants specifically to add the chief executive of the Benefits Agency. Such people are not in the same league as those other people, who work in services that, in essence, are to do with crime and the detection of crime. We believe that that is appropriate as a grouping. It would be inappropriate for the chief executive of the Benefits Agency to be added to that list.

Government amendment No. 22 is a further amendment that we welcome. It follows along the lines of amendment No. 1, which we tabled and which was to leave out lines 4 and 5; the Government proposal is to leave out lines 4 to 9. It is all part of the tightening of the provision at the end of clause 6, which in our view should not allow the Government either to add or to take away at their own instigation the people who should be in that specialist list.

We are grateful again that there has been a move from the Government. We accept that the balance is right. If we are going to ensure that the Government should not have the power to add at their own instigation, of course they should not have the power to take away at their own instigation, either. That matter should come before Parliament. The legislation should be amended if the Government want to make that change.

That deals with Government amendment No. 23, too, which leaves amendments Nos. 2 and 3 and Government amendment No. 27. We have dealt with amendments Nos. 2 and 64, which replace a Permanent Secretary in the MOD with a Chief of Defence Intelligence. Amendment No. 3 is linked with that. Amendment No. 27 is the consequential Government amendment; it follows as a result of the earlier ones.

The net effect of the group is to introduce welcome concessions by the Government, specifically in relation to the MOD and to restricting the power to add and to take away; all that is welcome. There is the other proposal from the Conservative party, about which I have indicated our view and for which Conservative Members, to be fair to them, have argued before. We have been around that circuit. That leaves us with the substantive debate about who is the appropriate body to authorise interception of communication.

It is a matter of confidence. The working of the whole process depends on the authorities doing their job responsibly. Public approbation and confidence depend on the public believing that they trust the people who work the system. People say, "If you are not happy with the system, you can challenge it," but, by the nature of that particular part of public life, people may not know that they have been the subject of an application for a warrant, that a warrant has been issued and that someone has been intercepting communications, whether it be their e-mails, telephone calls or other communication.

It is important to have the maximum confidence in the authorities. Fairly narrow and specific authorisations can be applied for under the legislation; authorisations in relation to communications at home. In relation to communications in this country, people have to apply for a specific purpose, but there are wide-ranging authorisations in relation to communications between countries.

My understanding of the legislation is that, unamended, it will allow a general application to be made that is not specific to, for example, the hon. Member for North-East Hertfordshire (Mr. Heald), the hon. Member for West Lancashire (Mr. Pickthall) or me. However, an application could encompass us all if it has been made, for example, by NCIS in relation to information on drug dealing, or by Customs and Excise in relation to the importation or exportation of drugs. Such an application could be made because an authority believes that a dialogue on such matters is being conducted by mobile telephone, pager or e-mail between people in the United Kingdom and people in another jurisdiction.

Such provision would be worrying, especially as people would not know that their communications are being intercepted unless they are informed of it or accidentally discover it. We believe that it could be made less worrying by ensuring that the person authorising the interception is the most independent authority possible, who could ensure protection of the citizen's rights.

I have never understood the great resistance to the idea—although I understand its logic—that authorisation should require judicial intervention. The United Kingdom has always required police to go to magistrates to obtain a search warrant, to ensure that that invasion of someone's privacy—which may entail breaking down a door, searching documents or stopping someone on the street using extraordinary powers—is authorised by someone who is independent of the investigation and prosecution processes.

As I have gone round this course several times, I sense that the Government will not change their position on the issue. We have had no inkling that they are about to shift on it, and I do not read such a change in the Minister's body language. However, the case for a change has been made as strongly and persuasively in our consideration of this Bill as it has been in our consideration of previous legislation. Even if we do not win the argument today, I hope that we have flagged up the issue for our friends in the other place, and that they will come to the view that an appropriate level of the judiciary, rather than Ministers, should authorise the interception of normal communications between individuals. Whatever else is said about such an interception, it is an invasion by the state of an individual's liberty. It should be done only with the most stringent safeguards.

Mr. Heald

As the hon. Member for Southwark, North and Bermondsey (Mr. Hughes) knows, Conservative Members do not share his view on amendment No. 60—that a judge should decide whether an interception warrant is granted. As we have explained on previous occasions, the Opposition's view is that the Secretary of State—with the unique knowledge that he possesses, and the frequency with which he will be dealing with those issues—is best placed to make that decision. Interestingly, on Second Reading, the chairman of the Intelligence and Security Committee, my right hon. Friend the Member for Bridgwater (Mr. King), very forcefully made the point that Secretaries of State take those responsibilities particularly seriously.

We welcome some of the Government amendments in this group. We certainly welcome Government amendment No. 22, which restricts the list of those who may apply for an interception warrant by removing the catch-all clause 6(2)(k), which provides that an application may be made by or on behalf of any such other person as the Secretary of State may by order designate for the purposes of this subsection. We welcome the concession made in Government amendment No. 23, that the power to remove by order a person from the list should be deleted from the Bill.

We also welcome the Government's decision to change the person responsible for defence-related applications to the Chief of Defence Intelligence. The argument on that matter emerged in Committee and was well made, particularly by the right hon. Member for Berwick-upon-Tweed (Mr. Beith).

Amendment No. 6 seeks to add the chief executive of the Benefits Agency to the list. It is a recognition of the seriousness with which the Opposition view the issue of benefit fraud, especially how it should be fought. We say that, in some ways, the Bill does not provide crime fighters with all that they need. The chief executive of the Benefits Agency seems to be the senior official responsible for the detection of benefit fraud and, as such, we believe that he should be included in the list.

Benefit fraud is by far the most substantial crime by value committed in the United Kingdom. The Government say that it is so important that the security services can be involved in the worst cases, investigating organised crime. It is a pity, then, that the Benefits Agency should have to rely on the work of the National Criminal Intelligence Service or others to carry out its function.

When I suggested in Committee that the relevant person should be the Under-Secretary at the Department of Social Security, the Minister said that I was wrong and that the provision should refer to the Benefits Agency—so here it is: how about it?

8.45 pm

Mr. Charles Clarke

I have appreciated throughout our proceedings the jovial and positive spirit of our exchanges.

The intention of amendments Nos. 60 to 63 is to remove the power of the Secretary of State to issue interception warrants and to hand it to the judiciary—specifically to judges selected by the Secretary of State by order.

As the hon. Member for Southwark, North and Bermondsey (Mr. Hughes) acknowledged, the debate has a long history. I hear the arguments urged by those who advocate judicial involvement but, as I have said on several previous occasions, they do not persuade me. This is not only body language: it is words.

I maintain the view that authorising interception involves particularly sensitive decisions that are properly a matter for the Executive. The warrant-issuing process is a key part of the line of accountability from the law enforcement and intelligence agencies to the Secretary of State and then to Parliament.

There is certainly a place for judicial involvement, and that comes in the independent judicial oversight provided by the commissioners and the tribunal, who are there to provide a remedy if the Executive has acted outside its statutory powers. I do not believe, however, that judges can reasonably be expected to make decisions on what is or is not in the interests of national security, or that they are appropriately accountable.

The European Court of Human Rights has endorsed the present practice of Executive authorisation, for example in Christie v. UK. In addition, the system was recently endorsed in the latest report of the Interception of Communications Act commissioner, an independent and senior member of the judiciary.

I can assure hon. Members that the present system continues to work well, has safeguards built into it and is subject to judicial scrutiny. I hope that hon. Members will not press the amendments to a vote. If not, I ask my hon. Friends to oppose them.

There is more substantial debate to be had on the matter, but I do not want to detain the House on the point, as we debated it at great length not only in Committee and on Second Reading on this Bill but in Committee and on Report on the Terrorism Bill. I have summarised what I think are the key points.

Mr. Simon Hughes

There is a reasonable concern about one matter with which the Minister has not dealt. When the agency that applies for the warrant is one for which the Secretary of State is responsible, it would appear that both the applicant, and the person applied to, have the same state interest. That would be the most obvious instance of lack of independent adjudication.

Mr. Clarke

As the hon. Member for North-East Hertfordshire (Mr. Heald) said earlier, Secretaries of State of all parties have taken seriously their responsibility to scrutinise such requests for warrants most carefully.

Mr. Hughes

indicated assent.

Mr. Clarke

I am glad that the hon. Gentleman accepts that, as he did earlier. That scrutiny process is genuine, and I do not believe that judges can reasonably be expected to make judgments on what is in the interests of national security. That is quite properly a matter for the relevant Secretary of State. I understand that other countries have other practices, but we have come to the conclusion that I set out.

I was grateful for the support of Opposition spokesmen on Government amendment No. 64. We have taken seriously the points made in Committee by the right hon. Member for Berwick-upon-Tweed (Mr. Beith) and a subsequent letter from the Intelligence and Security Committee reflecting that discussion. I pay tribute to my right hon. Friend the Secretary of State for Defence for the constructive way in which he has addressed those concerns by agreeing to our proposals.

In relation to the warranty proposals, we have carefully considered how to make it clearer that MOD procedures will possess sufficient checks and balances. I have written to members of the Intelligence and Security Committee explaining how we have sought to deal with that. Government amendment No. 64 proposes that the Chief of Defence Intelligence at the MOD should now be the designated office with authority to apply for an interception warrant. It would then fall to a separate unit within the MOD to process and check the warrant application, as happens for similar applications that go to the Home Secretary and other Secretaries of State. I hope that that solution satisfies the concerns that were raised.

Amendment No. 6 concerns the Benefits Agency. I am grateful to the hon. Member for North-East Hertfordshire for technically correcting his amendment in the spirit of the Bill. However, we have debated the issues already. I do not recall my words in Committee in full, but I said that our objections were not just to the incorrect technical wording but to points of substances. I sympathise with the intention to put proper and appropriate measures in place to combat benefit fraud, but providing the Benefits Agency with the power to apply for, and carry through, interception warrants is neither appropriate or necessary.

If the police wish to intercept a communication, they must apply through the National Criminal Intelligence Service. For that reason, individual police forces are not able to apply in their own right. Similarly, if the DSS is working on a serious fraud inquiry with the police, it can either apply through the police, via NCIS, for an interception warrant or it can apply to NCIS directly. There is therefore no need for the Benefits Agency to be added to that list in its own right. It does not possess the technical capability to intercept communications and we have no intention of giving it that capability. We have not received a formal request from the DSS or Benefits Agency for them to be considered as an intercepting agency. The hon. Gentleman makes a sincere point that we need to make available whatever powers we can to deal with benefit fraud, but the systems that we have in place are competent to do so. I hope that he will not press his amendment; if he is does so, I urge my colleagues to reject it.

I urge hon. Members not to press amendments Nos. 1 and 2, and hope that they will welcome the Government amendments that we have tabled in their place. I understand that that is acceptable. We have listened to what has been said, so amendments Nos. 22 and 23 remove from the Bill the power of the Secretary of State to designate by order persons to be added to, or removed from, the list of those who may apply for an interception warrant. That goes further than amendment No. 1, which states that the Secretary of State may not by designated order add names to the list only. Government amendment No. 27 is purely consequential.

Amendment No. 2 calls for a Secretary of State other than the Secretary of State for Defence to authorise MOD warrants. Government amendment No. 64 deals with that point adequately.

The intention behind amendment No. 3 is to ensure that the senior official authorised in clause 7 to issue an interception warrant in urgent cases or under international mutual assistance provisions should not be responsible to, or under the direction of, the person applying for that warrant. The amendment is not necessary for several reasons. First, in an urgent case, the Secretary of State has already expressly authorised the issue of the warrant. Therefore, it is of no concern who directs the senior official. He is only issuing the warrant after the Secretary of State has already agreed it. Secondly, the other reason for a senior official issuing a warrant is to action a request on international mutual assistance grounds. The amendment does not apply to that case for the simple reason that the senior official is not responsible to, or under the direction of, the competent authorities of a foreign power.

I urge hon. Members not to press their amendments, in some cases because the Government have met their concerns and in others because the concerns expressed are misplaced. If they do press them, I urge the House to reject the amendments.

Mr. Simon Hughes

We accept that Government amendments Nos. 22 and 23 cover amendment No. 1. As the Minister hoped, we are happy to accept Government amendment No. 64, which covers amendment No. 2. I hear what the Minister says about amendment No. 3 and he has a reasonable argument. We may come back to the issue in the other place after reflection.

In relation to amendment No. 60 and the associated amendments, we anticipated that the Government would not budge. I do not propose to delay the House again on a principle about which it has made its view clear on several recent occasions. The Minister acknowledged that judicial authority is given in other countries, and that in some countries the national security consideration can be separated and given to Ministers, while judges deal with other considerations. A third category exists, in which countries have a twin-track authorisation procedure.

I accept that the Minister is right to say that some external approval has been given to the process that the Government have traditionally used, and that it is supported in various quarters.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.