INTERCEPTION OF COMMUNICATIONS

HL Deb 21 May 1980 vol 409 cc1009-23

7.35 p.m.

Lord HOOSON rose to ask Her Majesty's Government whether they consider that the Home Secretary's undertaking to invite a senior member of the judiciary "to review on a continuing basis the purposes, procedures, conditions and safeguards governing the interception of communications … and to report to the Prime Minister" fulfils the United Kingdom's obligations under the European Convention on Human Rights, having regard to the opinion of the European Court delivered on 6th September 1978 on the subject of German wire taps. The noble Lord said: My Lords, I have raised this Unstarred Question because it is clear to every lawyer— and to every non- lawyer for that matter— who has read the judgment of the Vice-Chancellor, Sir Robert Megarry, in Malone's case, and the decision of the European Court of Human Rights in the case of Klass v The Federal Republic of Germany, that we have for some years in this country been— and we continue to be— in breach of our international obligations because of the manner in which telephone and mail interceptions are carried out.

Last month the Home Secretary undertook to do something about it by appointing a senior member of the judiciary to oversee the conduct of these interceptions. I welcome the concern which has led him to take such a step, but I seriously doubt whether the reform that he has in mind will in fact satisfy our international obligations. Rather than have the United Kingdom Government once again found to be at fault by the court in Strasbourg, I would wish the Home Secretary to seize this opportunity to get the matter right once and for all so that the citizens of this country may be accorded their full right to privacy and to the individuality of their domestic life in so far as that may be guaranteed to them, in a way which gives proper weight to our interests in combating crime and terrorist activity.

Let there be no doubt about the ambit of this debate. I am not suggesting for a moment that the use of telephone tapping, mail interception and methods of electronic surveillance should be stopped. These methods of crime detection obviously have a part to play at a time when the sophistication of international criminals requires police and security authorities to adopt sophisticated methods to uncover and to combat their activities.

The problem is that the unrestricted and particularly the unaccountable use of such methods does put innocent people at risk, risk of having their privacy, their family life and their intimate communications rifled and then put in storage by the State. The problem is to get the balance right: to permit the police to conduct serious investigations untrammelled by petty interference; but at the same time with due regard for the rights of possibly innocent people. How is that balance to be struck? I suggest by allowing the police to use these devices, but by restricting the cases where they may do so to those which are genuinely serious ones, and by providing a system of safeguards to ensure, so far as is humanly possible, that their use is not abused.

One can ask the question: How does our present system measure up to this standard? The answer is that it does not. The White Paper makes clear that the Home Secretary may authorise interception to investigate any crime which would probably on a first conviction carry a sentence of three years' imprisonment. I would hardly describe that class of offences thus defined as "really serious". But worse is to come: these methods may also be used against offences of lesser gravity— that is, really minor offences— whenever large numbers of people are involved or violence is apprehended. As I read that part of the White Paper, it offers a blank cheque for the use of telephone tapping to monitor legitimate political protest and legitimate industrial action. We all know that violence may flare up on a picket line quite spontaneously, and that minor offences of obstructing the highway are committed by almost every public protest meeting. It would be quite wrong to permit surveillance devices to be used against genuine protest movements.

What is more, our system has no legal safeguards at all in this context. That was the finding of the court in the Malone case to which I shall refer in a moment. An innocent person, who has had his private conversations recorded, circulated and then put in storage cannot sue for damages. He cannot obtain an order of the court whereby they must be des- troyed. He has no redress at all.

Let me explain what I mean by "legal safeguards", by reference to the measures which are enforced in West Germany. These measures were approved— but I think only just— as adequate by the Euro- pean Court in the Klass case, which is referred to in my Question. They amount really to a "bottom line", the very minimum protection which a citizen should be afforded by a government which is bound by the European Convention on Human Rights.

There are seven safeguards. First, the class of case in which intercepts may be ordered is narrowly defined. They must be cases which threaten an imminent danger to public order. That is the definition. Secondly, if no legal proceedings ensue after an intercept has been installed all the evidence of it must— and the word is "must"— be destroyed. There is no storage of transcripts, no ' information internally recorded on computers. Thirdly, the operation of the intercept is closely controlled by a person who is described as— and here I quote— "qualified for judicial office". He does not merely sit back and read reports. He decides whether an intercept is proper. He reads the transcripts which result and he decides whether, and to what extent, the information obtained in it should be turned over to the police or to the security service. In other words, he ensures that only material which is relevant to their inquiries should be made available. Fourthly, the whole process is supervised by a parliamentary committee on which Opposition parties are proportionately represented. This ensures that there is a real democratic oversight of electronic surveillance.

Fifthly, the subject of an intercept must be notified of the fact after it has ended if that notification would not jeopardise continuing security operations. Sixthly, anyone who suspects that he is the victim of surveillance may complain to the constitution court, which has power to investigate and, in proper cases, to order the discontinuance of any unjustified surveillance. Seventhly, any victim has the right to challenge the legality of the surveillance in civil proceedings and to bring an action for damages and for the destruction of records.

Those are just seven of the safeguards offered by West Germany. There are in fact several others, but clearly they offer the sort of protection which British common and statute law has never yet contemplated. Your Lordships may think they are over-elaborate, but let me stress again that they only just passed muster in the European Court in its judgment of 6th September 1978.

We are a signatory to this convention. How is the judgment on West Germany going to apply to us? This was the matter which was considered by Sir Robert Megarry in his judgment on the case of Malone, delivered on 28th February last year. He found it abundantly clear that our system is a breach of Article 8 of the convention which guarantees individual rights to private life and personal correspondence.

Let me read a few sentences from his judgment and, for the purposes of the record, they are taken from Volume II All England Reports 1979, at page 648. I want to read a few sentences from that judgment. After going through the West German safeguards, the Vice-Chancellor said: Not a single one of these safeguards is to be found as a matter of established law in England, and only a few corresponding provisions exist as a matter of administrative procedure ". He went on: At the same time, it is impossible to read the judgment in the Klass case without it becoming abundantly clear that a system which has no legal safeguards whatever has small chance of satisfying the requirements of that court, whatever administrative provisions there may be ".

Then he discusses the German position, and goes on: In England, on the other hand, the system in operation provides no such independence and contains no provision whatever for subsequent notification. Even if the system were to be considered adequate in its conditions, it is laid down merely as a matter of administrative procedure, so that it is unenforceable in law, and as a matter of law could at any time be altered without warning or subsequent notification. Certainly in law any ' adequate and effective safeguards against abuse' are wanting. In this respect English law compares most unfavourably with West German law: this is not a subject on which it is possible to feel any pride in English law ".

These are very serious words from the Vice-Chancellor. He goes on: I therefore find it impossible to see how English law could be said to satisfy the requirements of the convention, as interpreted in the Klass case, unless that law not only prohibited all telephone tapping save in suitably limited classes of case, but also laid down detailed restrictions on the exercise of the power in those limited classes ".

Then he went on— and I shall quote two sentences from a later paragraph slightly out of context here— I would only add that, even if it was not clear before, this case seems to me to make it plain that telephone tapping is a subject which cries out for legislation ".

Later he said: I would have thought that in any civilised system of law the claims of liberty and justice would require that telephone users should have effective and independent safeguards against possible abuses ".

The Vice-Chancellor then went on to make it clear that only legislation would satisfy the convention's requirements. The common law cannot assist; nor can the addition of some extra-legal device. There must, he stressed, be some effective and independent safeguards which must be laid down by Parliament. This is what really concerns me about the announcement by the Home Secretary. He will not legislate. Instead, he will invite a senior member of the judiciary— and here I quote— to review on a continuing basis the purposes, procedures, conditions and safeguards governing the interception of communications and to report to the Prime Minister ".

This, I think, is just not good enough. It is a rejection of the judgment in the Ma/one case. It is a slap in the face for the Vice-Chancellor and his demand for effective legislation. It is a woeful and deplorable attempt to ignore the lessons of both the Malone and Klass cases, and to defy the letter and spirit of the European Convention on Human Rights. It may buy a few more years for this country, until the Malone case reaches Strasbourg, where it is undoubtedly going; but we will once again have been found in breach, and knowingly and deliberately in breach, of our obligations.

The Home Secretary's judicial monitor has no power to control or to remedy. His task is merely to review and report. He has no authority to correct abuses or even to publicise them. He is not accountable to Parliament; he will merely write secret reports to the Prime Minister. The convention surely requires a system of safeguards which both restrict and control. The Home Office suggests a personage who has no legal basis, no authority and no power. The proposal seems to me contemptible: at least it is in contempt of the European Court.

There are other problems, too, and very important ones. I am not in favour of embroiling members of the judiciary in politics, and the idea of using a sitting judge to deflect criticisms of the police and Government fills me with foreboding. Supposing he does approve a telephone tap on, say, trade unionists planning a strike, and then finds himself a few days later in his normal capacity hearing an injunction application designed to abort that very strike. And how is he possibly to keep tabs on 500 continuing telephone intercepts while at the same time carrying on his normal judicial caseload? Is it seemly, I ask your Lordships, for a judge who must uphold in court the tradition of judicial independence from Government, to have secret access to the Prime Minister and the security services? I think it is a misuse of judge power.

I appreciate the viewpoint of the Government that judges are thought to be entirely independent and to enjoy warm regard in this country but, quite frankly, the German system avoids these difficulties by legislating for a full-time position occupied by a person qualified for judicial office, not a part-time extra-legal job, sloughed off on to a sitting member of the judiciary. It puts the judiciary in an impossible position. One know that judges have their own political views before being appointed— they never express them when appointed— but I can imagine individual judges having different views on what is proper or not proper in telephone tapping, and I do not think judges should be placed in this position.

It is not a matter for judges. It is a matter for Parliament, and we should be shirking our duties to allow a Home Secretary to get away with what I regard as an improper and hamfisted attempt to avoid the obligations of the European Convention. We must have legislation, not promises about judicial monitors. We need a statute which narrowly defines the class of permissible intercepts, which provides remedies for abuse and which sets up an independent authority which not merely monitors but actively controls. More importantly, the statutory system must be accountable to this Parliament.

Decisions to tap telephones, to open mail and to install bugging devices may be directed against bank robbers and terrorists, and we should all approve and applaud. But they may also be directed against political protesters, against trade unionists and against members of groups which are perceived by some, but not by others, as subversive. These decisions must be made in secret, but the only way to satisfy the public that they are made fairly and responsibly is to give Parliament some means of reviewing them. I commend to your Lordships the West German system, whereby an all-party parliamentary committee reviews the operation of that country's bugging apparatus.

I ask the Government not only to legislate, but to set up as a matter of urgency a small committee— say, of two members of the Government, two members of the Labour Party and one Liberal or something of that kind— to fill the role so improvidently given to a judicial monitor. The committee would oversee the system and report not in secret to the Prime Minister, but in public to Parliament. I am amazed that the Home Secretary, who was, after all, in receipt of a very detailed, publicly delivered advice by the Vice-Chancellor in the form of his judgment in the Malone case, has chosen to ignore that advice from a highly respected judicial figure, and is simply inviting condemnation by the European Court in a few years' time. That is why I have raised this Question. I think it is a matter which should be publicly debated and I hope that it will also, after the debate here, be debated in another place.

7.53 p.m.

Lord ELWYN-JONES

My Lords, I am sure that the House will be grateful to the noble Lord, Lord Hooson, for initiating this debate on the Question whether the Government's White Paper on the interception of communications in this country, and the announcement of the Home Secretary concerning the proposed use of a senior member of the judiciary to monitor what is happening, fulfils the obligations of the United Kingdom under the European Convention on Human Rights, particularly, as the noble Lord has said, in the light of the decision in the Klass case.

I myself have up till now resisted the incorporation in our law of the European Convention on Human Rights, but on each occasion I have stressed how important it is that our law and our practices should comply with the provisions of the European Convention and, where they do not comply, that Parliament should remedy the defect. For my part, I should greatly have preferred speaking after the noble Lord who is to reply on behalf of the Government, so that one might know what answer the noble Lord, Lord Belstead, who is always generous with information and in wishing to help the House, will have to the serious points that have been raised by the noble Lord, Lord Hooson.

I think, as he has said, that there is not only the judicial concern expressed in the Chancery Division— not always notorious for plunging into the public and political arena— and it is a very grave matter indeed that the Vice-Chancellor has said that the British practice in this field fails to measure up to the standards of the Convention, but there is also public concern about the use of telephone tapping and the interception of letters.

Of course, in these days of sophisticated, and sometimes internationally inspired, crime and terrorism the state, our Government have the right to defend the people of this country by appropriate means against the sophisticated actions of the villains, who seek not only to undermine the authority of the state itself by terrorist action but also to commit grave crimes against our people. However, the use of intercepts should be undertaken only if it is strictly necessary to protect national security or public safety, and when adequate safeguards exist against abuse of the procedures that are available.

I am bound to say that I share the concern expressed by the noble Lord, Lord Hooson, about the criteria for the grant of an interception warrant set out in paragraph 4 of the White Paper, which reads: 'Serious crime' is defined as an offence for which a man with no previous record could reasonably be expected to be sentenced to three years' imprisonment, or "— then follows the words— 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". What has the Home Secretary in mind in that field? What kind of situation is contemplated there? The noble Lord, Lord Hooson, has conjured up the fear that that extension may be directed against public demonstation, and those who exercise democratic rights in assembling a large number of people together in lawful protest. I think we are entitled to know what is in mind in that extension of the criteria for the grant of a warrant.

The noble Lord, Lord Hooson, has read out the seven safeguards which exist in Germany in respect of the use of this executive power to interfere with the citizen's right of privacy. Perhaps it is not surprising that Germany, which suffered under the Gestapo with all the terrible powers of an oppressive police state, should have been determined that nothing of that kind should happen again. It may well be that the safeguards which have been thought right to be introduced in Germany are not exactly what is required here.

But one comes against the response of the Government to both the Megarry judgment and the Klass judgment; namely, the proposal that a senior judge should be given monitoring powers in this field. It is only fair to say that the Klass judgment itself commends judicial control as offering the best guarantee of independence, impartiality and proper procedure. It may well be, therefore, that the Home Secretary and the Government have thought that this was the answer. But, of course, that is only part of the safeguards and the supervisory control which the Klass judgment had in mind.

In any event, I share the concern of the noble Lord, Lord Hooson, about the use of a High Court judge, not a retired one, to perform duties which inevitably, I think, will involve political value judgments. The less we plunge the judiciary into such fields as that, the better, I believe, for the independence of the judiciary and the better for the relationships between Government and Parliament and the judicial Bench. I am bound to say that I wonder, if this work is to be done thoroughly, how it can fit into the carrying on of his normal duties by a judge of the High Court or the Court of Appeal. I suspect that the arm of the noble and learned Lord the Lord Chancellor would have to be twisted pretty sharply to get his consent to making available a judge for what, if this procedure were to be even remotely effective, would involve an almost full-time commitment.

The concerns which have been expressed by the noble Lord, Lord Hooson, are well founded and the House will want to hear what the Home Office has to say about the matter. I shall not detain the House any longer, save to say that I share the concern and the doubts which have been expressed by the noble Lord, Lord Hooson. We shall await with impatience what the noble Lord, Lord Belstead, has to say. This is only the beginning of the discussion in Parliament. As I think the noble Lord, Lord Hooson, said, it calls for serious and deep thought. It is a difficult and delicate field. As I indicated, we are dealing on the one side with a lot of powerful and dangerous men whose activities we want to check up on, while on the other we are dealing with the fundamental right of the subject to privacy, a right which has long been safeguarded in this country.

8.2 p.m.

The PARLIAMENTARY UNDERSECRETARY of STATE, HOME OFFICE (Lord Belstead)

My Lords, I am grateful to the noble Lord, Lord Hooson, for asking this Unstarred Question this evening, because he has expressed concern about the publication of the White Paper on 1st April by my right honourable friend the Home Secretary and I believe that I can meet many of the points of concern which the noble Lord has expressed.

The provisions of the European Convention on Human Rights and the particular case to which the noble Lord refers in his Unstarred Question formed a substantial part of the plaintiff's argument in Malone v. Commissioner of Police of the Metropolis, which was heard before the Vice-Chancellor last year— a case to which both the noble and learned Lord and the noble Lord have referred. As your Lordships will probably be aware, following the Vice-Chancellor's judgment in that case, a study was put in hand by the previous Administration and was continued by the present Government. The issues to which the noble Lord has drawn attention were much in the mind of the Government in carrying out that study, the outcome of which was reported by my right honourable friend the Home Secretary in his statement on 1st April accompanying the publication of the White Paper to which I have referred.

The Vice-Chancellor in his judgment said that it was not his responsibility to give a ruling as to whether our arrangement would be considered to meet the requirements of the European Convention. And, of course, nor is it within the Government's power or responsibility to do so. Only the Strasbourg institutions can do that. But it is of course our belief and contention that our arrangements do satisfy the European Convention, and if necessary we would make good that contention before the competent tribunal in Strasbourg.

A matter which neither the noble and learned Lord nor the noble Lord has mentioned is that Mr. Malone has made an application under the convention, and the proceedings are now pending before the commission. In these circumstances, I hope the noble and learned Lord and the noble Lord will agree with me that it would obviously not be right to expect me to go into detail on the arguments arising in the case.

Lord ELWYN-JONES

My Lords, may I say that I had no knowledge that there was any matter further pending, and I can quite understand any reticence which in those circumstances the Minister may seek to exercise.

Lord BELSTEAD

My Lords, I am most grateful to the noble and learned Lord. I must admit that I was advised about this only recently before the debate in your Lordships' House this evening.

In case the noble Lord feels that therefore I wish to finish my speech at that point, I should like briefly in response to the spirit of the Unstarred Question— I think the noble Lord, Lord Hooson, made his general case clear at the beginning of his speech before amplifying it as he went along— to try to remind the House of why, in the Government's view, our arrangements, as described in the White Paper, reinforced as they are now to be by the introduction of a continuing judicial monitor, fully protect the liberty of the subject. That, of course, is the purpose of the European Convention.

First, there is full public knowledge of the principles, procedures, conditions and safeguards under which interception is carried out. The arrangements were first set out in the Birkett Report of 1957 and they were fully explained in my right honourable friend's statement on 1st April. The White Paper, published on that day, brings up to date, so the Government believe, comprehensively the arrangements which were described in the Birkett Report.

Secondly, the arrangements ensure strict control by Ministers of the process of interception. Every case has to be personally authorised by my right honourable friend the Home Secretary or, in Scotland, by my right honourable friend the Secretary of State for Scotland. As my right honourable friend the Home Secretary made clear on 1st April, he considers every application extremely carefully before he puts his signature to it. The Home Secretary is accountable to Parliament for his actions and I think it is a well recognised and accepted convention that Parliament places a great deal of personal trust in the Home Secretary of the day, on the understanding that he is personally accountable to Parliament for the way in which he discharges his responsibility. This, to my mind, is the reality behind parliamentary control over interception.

But there is a third point— and it is, I think, of immense importance in our system— that is based on what I would call the separation of powers. The agencies that require the product of interception— the Post Office which carries out interception and my right honourable friend the Secretary of State who authorises interception— are all independent of each other. The agencies cannot carry out interception on their own account. The Post Office will not act without the authority of the Secretary of State because, if they did, they would be in breach of the law. And the Secretary of State, as I have said, will not authorise interception otherwise than in accordance with the principles, procedures, conditions and safeguards laid down.

Fourthly, as my right honourable friend said in another place on 1st April, the Government are committed to informing Parliament of any changes made in these principles, procedures, conditions and safeguards. There is a final and a fifth point, which I should like to put to the House. It is the appointment of a senior member of the judiciary to act as an independent monitor. I think that this will provide an additional safeguard, an extra assurance, if one is needed, that this power is exercised responsibly and in accordance with the agreed principles and procedures by all concerned with it.

The noble Lord in his speech made various assertions about the position of the independent monitor, and the noble and learned Lord also expressed certain disquiet about the position of the independent monitor, so may I make clear the Government's view of this appointment. The judge's terms of reference will be wide-ranging. His first report will be in effect a comprehensive review of the arrangements, and it will be published and Parliament will be informed of any subsequent findings of a general nature. The learned judge will have the right of access to papers, as I think I made clear in reply to the noble Lord, Lord Hooson, in this House on 3rd April. The judge will be a continuous and independent check that interception is being carried out in accordance with the established purposes and procedures. His function is to reinforce the arrangements and provide an additional safeguard. That will reinforce and not weaken or substitute for the personal responsibility of the Home Secretary.

Thus I submit to the House that our arrangements are, as the Vice-Chancellor concluded in his judgment in the Malone case, in accordance with the law of the land. They provide proper protection for the liberty of the citizen and they incorporate what is, in our tradition, the best possible guarantee of that, in the shape of the ultimate responsibility of my right honourable friend the Secretary of State to Parliament.

Lord HOOSON

My Lords, if the noble Lord will forgive me for intervening, will he address his mind to the question which has been raised by my noble and learned friend and myself about the probability of the judge involved becoming in the course of years the butt of political criticism?

Lord BELSTEAD

My Lords, in the light of what I have endeavoured to say to the House this evening I do not think that is a practical proposition and I do not accept the proposition which the noble Lord has put to me in that respect.

Lord ELWYN-JONES

My Lords, I do not know whether the noble Lord is concluding his speech at that point, but may I ask him to comment on the point that was raised by the noble Lord, Lord Hooson, and myself; namely, the criteria set out in paragraph 4 of the White Paper, which includes intervention in respect of an offence where either a large number of people may be involved or there is good reason to apprehend the use of violence? That troubles both of us.

Lord BELSTEAD

My Lords, all that is actually new in paragraph 4 as compared with the Birkett Report is the reference to cases where: there is good reason to apprehend the use of violence". Those words are new. The prevention of violence must always be a primary concern of the authorities. That is why those words have been injected into the White Paper.

Lord ELWYN-JONES

My Lords, if the noble Lord will forgive me for intervening again, what troubled me, at any rate, is this: "an offence of lesser gravity" in which a larger number of people is involved, and where apparently there is no element of violence or apprehension of that in the picture. That may be wrong— I do not know.

Lord BELSTEAD

My Lords, I think if I start to cross swords with the noble and learned Lord I shall get into deeper and deeper water. All I think that I ought to say and can say is that these criteria must be read together with all the criteria which are laid out on page 2 of the White Paper. If one takes the criteria together I think they make sense, and just sense, which the Government believe the White Paper makes.

Lord HOOSON

My Lords, if the noble Lord will forgive me for intervening again, this is very important. In paragraph 4 of the White Paper, it says: could reasonably be expected to be sentenced to three years' imprisonment, or 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". It is not "and there is good reason to apprehend the use of violence".

Lord BELSTEAD

My Lords, I am not quite sure whether we are straying from the bounds of order. I am not trying to protect myself in saying that, but we are on an Unstarred Question and I had finished my speech. All that I think I ought to say to the noble Lord in case, as I said, I get into water in which I am out of my depth, is that the words which I read out originally in reply to the noble and learned Lord— because I was reading from a note which I had in my hand— I think hold good in reply to the final question put to me by the noble Lord, Lord Hooson. It was for the reason which I gave to the noble and learned Lord that the words which are new in paragraph 4 have been injected into the White Paper. I am sorry, my Lords, but I really do not think I can go further than that this evening.