§ 3 p.m.
§ The Chancellor of the Duchy of Lancaster (Lord Cockfield)
My Lords, I beg to move that the House do now again resolve itself into Committee in this Bill.
§ Moved, That the House do now again resolve itself into Committee—(Lord Cockfield.)
Lord Bruce of Donington
During the proceedings of your Lordships' Committee yesterday the noble and learned Lord the Lord Advocate in the course of the 631 debate on an amendment, indicated at col. 470 of the Official Report:We intend to make a statement to the House at a later stage of the Bill outlining the steps we propose to take to permit wider resale of circuits leased from BT".That statement at the time aroused some anxiety in the Committee, and indeed some debate took place upon it. At a later stage the noble and learned Lord was moved to say that he hoped to have a statement made not at the Committee stage but at Report or Third Reading. That did not meet with the entire approval of the Committee and it did not quite quell its anxieties. So a little later in the proceedings the noble and learned Lord said that he hoped that the Government would be in a position to make the statement by the Report stage of the Bill.
Your Lordships will recall that there was still some widespread dissatisfaction with the situation, and that subsequently the Committee divided on the Motion, That the House do now resume. And the Government obtained only a very small majority. The situation is still very unsatisfactory. I have considered the matter with my noble friends on this side of the House and we now have formally to ask the Government whether the promised statement can be made at least 10 days before the Report stage of the Bill. Your Lordships will appreciate that this matter is of some consequence, not only in regard to amendments that have been discussed, but also in regard to those still to come, particularly those with financial implications. Therefore, it will be necessary, for the convenience of Her Majesty's Opposition—and indeed for other Members of the House—to have this statement in good time to enable the appropriate consultations to take place, so that the matter may be discussed in some detail, and in order that amendments may be put down in good time before the Report stage. Then the Government will have an opportunity of considering the reaction that results from their statement. We should be most grateful if the House can be given that assurance.
§ The Lord President of the Council (Viscount Whitelaw)
My Lords, I give the noble Lord and the House the assurance that it will be put before your Lordships' in good time.
§ Lord Cledwyn of Penrhos
My Lords, the noble Viscount has been kind enough to make that statement, but I wonder whether he can clarify the position rather more than he has done? My noble friend Lord Bruce of Donington has made a very reasonable statement and a very reasonable request to the House. What the noble Viscount has done is to leave us in the same state of uncertainty as we were left in yesterday. "In good time" is not quite good enough. We need to know that this will be in our hands a reasonable period of time before the Report stage. As my noble friend has said, this is a matter of the utmost complexity and importance. Therefore, we shall be most grateful to the noble Viscount if he can give us a rather clearer indication of when we may expect the statement.
§ Lord Lloyd of Kilgerran
My Lords, this is a very complicated Bill and I and Members sitting on this 632 side of the House would like to support what has been said already.
§ Viscount Whitelaw
My Lords, of course I will respond to the noble Lord, Lord Cledwyn, and the noble Lord, Lord Lloyd. When I said "in good time" I hoped that that could be interpreted as being in reasonable time and in proper time before the Report stage.
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD ABERDARE in the Chair.]
§ Clause 45 [Interruption or interference with public telecommunication system]:
§ Lord Stoddart of Swindon had given notice of his intention to move Amendment No. 109:
Page 42, line 18, at end insert—
("(3) No person being an employee of a company or companies running telecommunications systems shall be guilty of an offence under this section if the conduct complained of takes place exclusively or primarily in contemplation or furtherance of a trade dispute with those running telecommunications systems.
(4) No person shall be guilty of soliciting or procuring or attempting to solicit, incite or procure or aiding or abetting the commission by an employee of companies running telecommunications systems of an offence under this section unless it can be established that one or more of the persons so solicited, incited or procured, or aided or abetted or in relation to them an attempt to solicit, incite or procure as aforesaid is alleged to have been made would not have been entitled to the immunity conferred by subsection (1) above in the event of his or their being charged with the relative substantive offence of the said provisions.
(5) Where in pursuance of any agreement the Act in question in relation to any of the offences referred to in subsection (4) above are to be done exclusively or primarily in contemplation or furtherance of a trade dispute with companies running telecommunications systems that offence or those offences are to be disregarded for the purpose of section 1 of the Criminal Law Act 1977.")
§ The noble Lord said: At a very late stage last night we were presented with two amendments by the Government which your Lordships were pleased to pass. Amendment No. 109 refers to the problems of strikes and other action. In all the circumstances, bearing in mind that at the end of his statement the noble and learned Lord the Lord Advocate invited comments that he said the Government would consider, and bearing in mind also that we—and indeed all other interested parties—will wish to consider in depth and at certain length what the noble and learned Lord said, with the consent of those noble Lords who have appended their names to this amendment, I do not propose to move the amendment.
§ [Amendment No. 109 not moved.]
§ Clause 45, as amended, agreed to.
§ Clause 46 [Interception and disclosure of messages etc.]:
Lord Mishcon moved Amendment No. 110:
Leave out Clause 46 and insert the following clause:
§ ("Interception and disclosure of messages.
§ 46.—(1) A person who—
- (a) intentionally intercepts any message or other matter carried by means of a telecommunications system licensed under section 7 above:
- (b) instigates any person engaged in the business of a licensee to intercept such a message or other matter; or
- (c) discloses the contents of any message or other matter intercepted under paragraph (a) or (b) above,
§ (2) Proceedings for an offence under subsection (1) above shall not be instituted in England or Wales except by or with the consent of the Attorney General, or in Northern Ireland except by or with the consent of the Attorney General for Northern Ireland.
§ (3) The Secretary of State may, on the application of a chief officer of police or the Commissioners of Customs and Excise issue a warrant for the interception and disclosure of telecommunications if he is satisfied that—
- (a) it would assist in the detection of a serious offence;
- (b) normal methods of investigation have been tried and have failed or from the nature of things are unlikely to succeed if tried; and
- (c) there is good reason to think that the interception would result in a conviction for that offence.
§ In this subsection "serious offence" means—
- (i) an offence for which a person not previously convicted could reasonably be expected to be sentenced to imprisonment for a term of three years; or
- (ii) an offence in which either a large number of people is involved or there is good reason to apprehend the use of violence or the financial rewards of success are very large.
§ (4) The Secretary of State may, in the application of a chief officer of police or the Director General of the Security Service issue a warrant for the interception and disclosure of telecommunications if he is satisfied that—
- (a) it would assist in the detection of a major subversive, terrorist or espionage activity giving rise to external or internal danger to the defence of the realm; and
- (b) normal methods of investigation have been tried and have failed or from the nature of things are unlikely to succeed if tried.
§ (5) An application for a warrant under this section shall be made in writing and shall specify—
- (a) the person whose telecommunications it is sought to intercept and the telecommunications in question; and
- (b) the facts and circumstances in support of the application.
§ Provided that the Secretary of State may allow any information required under paragraph (b) above to be provided orally and not in writing in respect of an application for a warrant under this subsection.
§ (6) Except in a case of emergency any warrant under this section shall be issued only under the hand of the Secretary of State; and, in any such case, shall be confirmed under his hand as soon as reasonably practicable after issue.
§ (7) Any warrant issued under this section should carry a time limit not exceeding two months from the date of issue and may be renewed for not more than one month at a time in the case of an application of the police, not more than two months at a time in the case of an application of the Customs and Excise, and not more than six months at a time in the case of an application of the Security Service.
§ (8) In this section "intercept" includes the doing of any act designed to enable an interception to take place and "intercepts", "intercepted" and "interception" shall be construed accordingly.")
§ The noble Lord said: I am moving this amendment concerning the new clause with the consent of those in whose names the amendment stands and in the absence of my noble and learned friend Lord Elwyn-Jones, who finds himself engaged upon other matters but who otherwise would have been here in the Committee and would no doubt have repeated the eloquent speech which he made on a very similar amendment at the Committee stage of this Bill in its former version in a former Session of your Lordships' House.634
§ In opening the debate on this amendment, I should like to point out that it is one of the most important amendments to this Bill that your Lordships will have to consider. It touches—and when it does so there is a very ready reaction in your Lordships' House—upon the liberty of the subject, upon the value of privacy and upon international conventions to which we are a party and which pay tribute to that right of privacy. I cannot think of anything more annoying—if I can put it in that somewhat neutral language—than having one's telephone tapped and knowing that that telephone can be tapped without proper control.
§ This is not a new matter that has been exercising the public mind; it goes back a very long time. Debate after debate, article after article, and meeting after meeting of the Post Office Engineering Union have endeavoured to ensure that there is proper regulation concerning telephone tapping. This amendment has two aims. The first is to see that there is statutory provision for the control of the right of the state, through the Secretary of State, to indulge in telephone tapping. The amendment also seeks to put just measures into the Bill for the control—and indeed, the punishment—of those who indulge in unauthorised telephone tapping.
When one is talking in terms of the control of crime, the guardianship of security and the defence of customs and excise in the proper carrying out of their very difficult duties, when one is dealing with matters of espionage and terrorism (as unfortunately we do in this age) I hope that your Lordships will take it for granted that in moving this amendment—which is very clear in its terms—there is not the slightest desire to impinge upon any of those very vital matters. This is written into the amendment, and written in very clearly. I suppose that everyone would also agree with the words of the noble and learned Lord, Lord Diplock, who has such a great experience of these matters. The noble and learned Lord was charged with certain duties and in his report, which was published in 1981, he said:
The exercise by the state of any power to read or listen to communications taking place between private citizens involves an invasion of their privacy which has always been looked on by the public with suspicion and distaste.
§ Therefore, we start our investigation of this new clause (if I may put it that way) upon the basis that there is no desire at all to impinge on the proper use by the state of very necessary powers in certain circumstances. We also start with the premise that it is a right which must be properly circumscribed, because otherwise it is an invasion of a very sacred right and one, of course, recognised by the Convention on Human Rights.
§ Your Lordships may be amazed to know that, in spite of all these matters to which I have referred, there is no clarity in our law as to what are the rights of the state and what are the rights of the citizen in these matters. There is certainly no statutory form. Again, I want to make it clear to your Lordships that, in trying to put this into statutory form, the amendment follows completely and closely the very words that are used in the White Paper which was issued by the Government only a couple of years ago, in which they explained their procedure before the warrant was issued by the Secretary of State. So, again, we proceed with this 635 clause on the basis of moderation and of putting into statutory form only what the Government themselves have said is the proper procedure to be followed in regard to state-authorised interference in this way.
A very great judge had something to say about the state of our law. Sir Robert Megarry, Vice-Chancellor of the Chancery Division, in the case of Malone v The Metropolitan Police Commissioners at page 733 of the Weekly Law Reports of 18th May 1979 gave a judgment. With your Lordships' permission, because it is so germane to the very fundamental reasoning behind this amendment, I seek leave to read this excerpt from his judgment:
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. Privacy and confidentiality are, of course, subjects of considerable complexity. Yet however desirable it may be that they should at least to some extent be defined and regulated by statute rather than being left for slow and expensive evolution in individual cases brought at the expense of litigants and the Legal Aid Fund, the difficulty of the subject matter is liable to discourage legislative zeal. Telephone tapping lies in a much narrower compass. The difficulties in legislating on the subject ought not to prove insuperable and the requirements of the convention should provide a spur to action, even if belated.".
I pause for a moment only to say that the convention is, of course, the European Convention on Human Rights, to which we are a party and in regard to which only yesterday our Government was sued before the court after an adverse report from the European Commission on breaches of that convention so far as this Government are concerned and so far as our country is concerned on the very matter about which I am talking, which is telephone tapping. I continue:
This, however, is not for me to decide. I can do no more than express a hope and offer a proleptic welcome to any statute on the subject. However much the protection of the public against crime demands that in proper cases the police should have the assistance of telephone tapping, 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.
§ I could continue with this passage, which merely repeats in very eloquent language the need for legislation and the need for statute to set out very clearly what the procedure should be and what the safeguards should be for the private citizen when telephone tapping is in fact exercised by the state. I repeat, in this connection this amendment follows word for word all the matters which the Government in their White Paper have said is the normal practice; and all the matters which the Government have said are done are in fact incorporated in this amendment without any addition. So much for the state exercising the right of telephone tapping.
With your Lordships' experience in industry and commerce (which is very great in various parts of the Committee), your Lordships will know full well of the growth of industrial espionage. Your Lordships will also know what happens from reading reports in journals and in the daily papers. Your Lordships will also know about what unfortunately happens in the criminal world in regard to blackmail as a result of the interception of telephone calls. In connection with unauthorised tapping, this amendment simply makes
the penalties realistic and, if I may quote some very well-known words, it makes
the punishment fit the crime".
§ Therefore, we have the opportunity of doing what a distinguished judge has called for; we have the opportunity of doing what those experienced in this matter have been crying for; and, by a vote on a completely non-political matter, we have the opportunity of doing what another place nearly did when almost this selfsame amendment came before it at the Committee stage of the previous Telecommunications Bill. On that occasion, the amendment was lost by the Chairman's vote. Your Lordships will know their procedure—and some of your Lordships will know it far better than I. The procedure is that, if there is no majority for an amendment, by tradition the Chairman has to vote against it. So the amendment was very, very nearly carried.
§ No doubt your Lordships will have read reports in The Times this morning that the Attorney-General, because of the importance of the matter, appeared yesterday on behalf of the Government in a case which dealt with telephone tapping. It was said that we had no proper safeguards and that we were in breach of the convention. If ever there was a moment—a very topical moment—in which to carry this amendment, to bring ourselves clearly within the terms of the White Paper and the convention and to impose on ourselves a duty to safeguard the private rights of the citizens of our land and to see to it that the statute speaks in a clear way and that the law is lucid, in a field in which it has not been clear up to the time that your Lordships have this great opportunity, that time has come. I beg to move.
§ Lord Lloyd of Kilgerran
Your Lordships will know that the party to which I have the honour to belong has a long tradition in strongly supporting matters relating to privacy and the human rights of the individual. Many of your Lordships will still remember the many interventions made by the late Leader of my party, whose sudden death we all so greatly mourn. Noble Lords will no doubt remember the many interventions he made in your Lordships' House on this very matter of human rights and questions of privacy. In view of the powerful speech of the noble Lord, Lord Mishcon, with all of which I certainly agree, echoing as he has done the powerful words of the noble and learned Lord, Lord Diplock, I shall be very brief. I merely want to say that if the noble Lord decides to move to a Division, then we on these Benches will certainly support him in that.
Your Lordships will forgive me if I emphasise one matter since I have raised so many matters during the Committee stage of this Bill relating to EC and foreign laws. The passing of this amendment will in my view be a very useful and helpful method of enabling the Government to put themselves within the European law in relation to human rights.
§ Lord Edmund-Davies
I had no reason to think that I would be present this afternoon, otherwise I should have come prepared to deal with this vitally important constitutional matter. I have to say that my time in the Chamber must be limited to the next half an hour. I 637 hope your Lordships will acquit me of discourtesy, because it is absolutely impossible for me to remain here. But I cannot be here for any time at all without submitting to the Committee that it is wholly unthinkable that in these days subsection (3) of Clause 46 in the Bill can be tolerated for a moment. It says:Subsection (1) above does not apply to anything done in obedience to a warrant under the hand of the Secretary of State"—no more. A warrant issued by the Secretary of State is a complete answer to the earlier provisions. That simply will not do. This is not a party matter; this is a matter of the greatest constitutional importance.
No Secretary of State in any Government must be able to say: "You cannot inquire into this matter at all; I have issued a warrant. You may consider, you may be convinced—indeed, it may be apparent to everybody—that there was no ground on which a warrant could be issued, but nothing can be done about it". Accordingly, all I can submit for the earnest consideration of the Committee is that nothing should be done which will lead to the acceptance of such a provision as is contained in subsection (3) of Clause 46.
For the first time I have seen the suggestion contained in the amendment proposed. It begins in subsection (3) by placing a fetter upon the action of the Secretary of State. It is not simply his ipse dixit, to say that a warrant will be issued. He is required to be satisfied of at least certain matters. Whether or not the formula, if he is satisfied, et cetera, is quite acceptable in the light of the trouble caused by such cases as Liversidge v Anderson is a matter which I think demands very careful consideration hereafter, but at least the amendment has the virtue of placing or seeking to place some degree of fetter upon the power of the Secretary of State—if he is satisfied that it would assist in the detection of a serious offence, and so on.
I apologise for the total inadequacy and the shabbiness of my intervention at this stage in the wholly unforeseen circumstances of my being present here this afternoon. But I implore the Committee to see that something is done on the lines of subsection (3) of the amendment to Clause 46, at least, and that the clause in its present form does not go through.
§ 3.25 p.m.
§ The Lord Advocate (Lord Mackay of Clashfern)
The noble Lord who moved this amendment referred us to the earlier occasion when a very similar amendment was debated and when his noble and learned friend Lord Elwyn-Jones moved the corresponding amendment. The argument is very much the same now as it was then, subject to the fact that, as the noble Lord, Lord Mishcon, said, only yesterday the European Court of Human Rights were hearing the oral submissions arising out of the case of Malone, which was dealt with on the judgment of the Vice-Chancellor, Sir Robert Megarry, to which the noble Lord referred. As is the custom in the European Court of Human Rights, the decision has been postponed for some time, so it will be some little time before the judgment of the court upon this matter in the case of Malone will be available. It would certainly seem to the Government that this would not be an appropriate time at which to attempt to deal with this matter in legislation, when there is a case pending 638 which is absolutely germane to it. The arguments of the Attorney General have been referred to already on that matter.
I think it is important to remember that the essential point we are discussing today is not the need for interception for the purposes set out in the White Paper, the detection of serious crime and the safeguarding of the security of the state, but the way in which it is controlled to ensure that the power to intercept communications is exercised only in clearly justifiable cases and that the use made of it is limited to what is strictly necessary.
In my submission to your Lordships it is not completely right to say that telephones can be tapped without proper control. Both the clause in the Bill and, of course, the amendment moved by the noble Lord provide that telephones may not be lawfully tapped without a warrant of the Secretary of State, and that anyone tapping in the course of their duties without such warrant would be guilty of an offence. There is a point between us possibly about what the penalty should be, but there is no question that unwarranted telephone tapping is an offence under the provisions of the Bill already. The only question is whether the granting of a warrant by the Secretary of State should be subject to controls which are set out in the statute, or should be a matter of the personal administrative responsibility of the Secretary of State for which he is answerable to Parliament under provisions of an administrative character which Parliament have set up, to which I shall come in a little more detail in a moment.
The Government's case against the detailed regulation of interception by statute rests on the proposition that interception, to be effective, must be secret. This means that both the fact of interception and the information which led to it must be secret. But if the detailed criteria for interception were laid down in an Act of Parliament then the whole process would become subject to much more open scrutiny. The inclusion in this Bill of this amendment would give private individuals the right to sue the Secretary of State in a civil suit in the courts, and the courts would be obliged to adjudicate.
To enable the courts to determine these matters fairly all the relevant information would have to be exposed in evidence because the procedures which are set down in the amendment require that certain information should be before the Secretary of State before the warrant is granted, and if that is to be adequately tested it would require revealing precisely the information which must be kept secret for the interception to be effective. Secrecy and litigation are difficult to reconcile, because the basic principle of our litigation is that it is completely open whereas secrecy of course goes in the opposite direction.
The Government believe that the present system under which the power of the Secretary of State to authorise interception under warrant is specifically recognised by legislation, and the White Paper, The Interception of Communications in Great Britain, which sets out detailed administrative procedures and safeguards for interception on behalf of the police, Customs and Excise, and the security service, avoid the unacceptable consequences of legislation while 639 indicating clearly the strict controls on interception for these purposes.
In addition—and this is the further matter to which I made reference earlier—there is the further safeguard of the independent judicial monitor. Lord Diplock's report published in March 1981, Command 81/91, found that the procedures set out in the 1981 White Paper were being strictly observed. In addition, there is the undertaking that the Home Secretary will inform the other place of any changes in these arrangements. The noble and learned Lord, Lord Bridge of Harwich, has now taken over from the noble and learned Lord, Lord Diplock, the task of maintaining a continuing independent check on individual cases. In the Government's view this scrutiny by the independent judicial monitor ensures that the arrangements set out in the 1980 White Paper continue to be scrupulously observed, while at the same time it preserves the secrecy which is the central feature of these arrangements.
It is not easy to elaborate upon this matter. These are the essential features of the argument and, as the noble Lord, Lord Mishcon, said, they have been elaborated many times. A further safeguard of course is the position of British Telecommunications itself. They need the confidence of their customers and would not put it at risk by allowing any kind of snooping on those customers' communications, and apart altogether from that there is the criminal sanction to which I have already referred.
In that situation I would suggest to your Lordships that the position which the Government have consistently taken up is one to which your Lordships should give effect at this stage. As I said, the effect is that the Court of Human Rights is in the course of dealing with a particular case on this very matter at this moment. It would seem to be a singularly inappropriate moment at which to indulge in detailed legislation. I should remind your Lordships that in the passage quoted from the Vice-Chancellor, Sir Robert Megarry, he indicated that legislation of this kind would possibly be simpler than legislating the right of privacy completely, but it is apparent from the way in which he expressed himself that he did not anticipate that legislation in this area would be particularly simple. In that situation the view of the Government is that this amendment should not be given effect, and that the clause as it stands in the Bill should stand part.
§ Lord Molloy
Is the noble and learned Lord the Minister aware that the view could well be taken that British legislation should by and large support anything that comes from the Court of Human Rights in Europe but that we certainly ought not to hold up any legislation to wait to see which way that court jumps? If we start on that caper, we would hardly get any legislation through this House whatsoever. However, we have to take full cognisance of what the Court of Human Rights says.
The other thing which the Minister ought to take into account is the able speech to which we listened from my noble friend Lord Mishcon, and the tremendously powerful words from learned people in the world of the judiciary that he quoted. They made us all think. Then we had the notable contribution 640 from the noble and learned Lord, Lord Edmund-Davies. Those of us who are not lawyers but who have listened to the words of these eminent people will realise that they are all opposed to the Government doing this. When one realises what we have heard said this afternoon in this Committee, and that the Opposition parties have declared themselves in support of the official Opposition against the Government, one is compelled to think that the safeguards which the noble and learned Lord read out are more excuses than safeguards, and that we should not be put off our duty.
Our duty lies in the firm belief that the ordinary people of this country are dead against any form of phone tapping except perhaps within the parameters outlined by my noble friend Lord Mishcon. It is on that basis that I support this amendment this afternoon. I believe that the mass of ordinary Britons in this island of ours support the judges who were quoted by my noble friend, and support the noble and learned Lord, Lord Edmund-Davies. I hope that the Government too will come round to agreeing to the amendment.
§ Lord Harris of Greenwich
On one matter I think that the noble and learned Lord the Lord Advocate would have persuaded us that he was right, and that was that telephone tapping is desirable on some occasions in the national interest. First, it is clearly desirable when there is a case of espionage, or suspected espionage. Secondly, it is desirable when there is a belief that it is the only way of bringing to justice some group of criminals involved in the international trade in narcotics. Thirdly, it is right when there is a belief by the Home Secretary that it is the only way to bring to justice people who are involved in grave criminal offences which, if carried through, will cause loss of life.
In those three cases I think there is no doubt that telephone tapping and mail interception are right. But I have rarely heard the noble and learned Lord the Lord Advocate less persuasive on an important issue which this Committee is discussing, particularly following the speech of the noble and learned Lord, Lord Edmund-Davies. When the noble and learned Lord the Lord Advocate turned to deal with the judgment of the Vice-Chancellor, Sir Robert Megarry, he in no way began to answer the point made by Sir Robert Megarry in that judgment.
What he said—and the noble Lord, Lord Mishcon, reminded us of it—was that telephone tapping cries out for legislation. The answer, in so far as there was an answer from the noble and learned Lord the Lord Advocate, was that Sir Robert Megarry had also said that legislation would not be easy to draft. No doubt it would not be, but that frankly is no answer at all. The Government have a clear obligation to bring forward legislation of their own. If they do not like the amendment, I hope that the noble and learned Lord will listen to the balance of the argument that has been deployed in this Chamber this afternoon and indicate that at a later stage he will bring forward legislation. What is involved here is this country, yet again, being dragged to the European court.
It is quite obvious what the judgment of that court would be. We already lost our argument in the European Commission when we were defeated very 641 nearly unanimously. What will happen is that later this year the European Court will bring forward a judgment which, once again, will cause great damage to the international reputation of this country and will give rise to some dark beliefs held by some people—I do not share those beliefs—that there is something very mysterious and wrong going on in this area of telephone interception. There is no point in saying that there is little risk involved in not having legislation.
I shall deal with one case that has not been touched on. It was a disciplinary case brought against a barrister some years ago. The noble and learned Lord may remember it. What was discovered on that occasion was that the telephone conversations of a member of the Bar had been intercepted and had been used as evidence against him in disciplinary proceedings. As a result of that a committee including the late Lord Birkett and Lord Gordon-Walker, were appointed to investigate this matter and produce a report. Following that report which the Government of the day accepted, there still remain grave doubts and uncertainty about the way in which the Home Secretary utilised his power. I do not believe there is a mystery. I believe that successive Home Secretaries have behaved wholly honourably in this matter, but there is so much public disquiet that it is the responsibility of the Government to bring forward a sensible amendment of their own, if they do not like this one, and put this whole issue on a statutory basis. That was what Sir Robert Megarry recommended and I hope the Committee will take that view this afternoon.
§ Lord Mishcon
The Committee is always entertained by the noble and learned Lord the Lord Advocate to powerful speeches and effective reasoning. I am afraid I must agree with the noble Lord, Lord Harris of Greenwich, that on this occasion he did not quite come up to that standard. It is not because of any lack of ability of the noble and learned Lord; it is merely that his mind was speaking but his heart was not in it. That was completely obvious.
I shall take up two points rapidly while paying my tribute to the contribution made by the noble and learned Lord, Lord Edmund-Davies. Is it not an extraordinary answer from the Government, that the reason that this is not timely is that we are waiting for the judgment of the European Court? I follow completely what the noble Lord, Lord Harris, said. Are we again to be forced into legislation, as it is quite obvious we are bound to be, because the court has found against us? Or are we to adopt an amendment of this kind which would mean without any doubt that we would not then be in breach of the convention? If the Government want to be put into that undignified position, may I be allowed to say in all humility that I do not think that the majority of the citizens of this country will welcome the indignity of legislating on that basis.
The second point that the noble and learned Lord rather haltingly made was that this might involve the judicial process. If there is one department in the whole of the Government that appears time and time again to fear the process of judicial review, for some uncanny reason it is the Home Office. It is as though one does not ever have in mind that if security matters 642 are involved there is an adequate procedure for the proceedings to be held in camera. Our judges are astute to guard the security of this country with their usual consistent ability and therefore the noble and learned Lord need not tremble on grounds of publicity. I repeat that this amendment (and the noble and learned Lord was unable to say otherwise) follows completely the procedure that was laid down in the White Paper; no amendments, no new thoughts, purely and simply a safeguard for our people, and a safeguard, too, for our reputation in the world, especially in Europe, in relation to human rights.
This is an opportunity for all of us to act in accordance with our conscience and to do our duty upon this occasion without regard to what seats we occupy in your Lordships' Chamber.
§ Lord Mackay of Clashfern
The noble Lord was suggesting that a complete answer to the problem that I raised about secrecy was the fact that the courts can sit in camera. I can understand that that is an important manner in which the courts can deal with security questions to prevent publicity. But it is not publicity that is important in this case. It is that the person who may be the subject of the inquiry should not be informed about the nature of the information upon which the warrant was based or, perhaps even more important, the source of that information. The sort of matters being dealt with under this procedure are matters of the highest importance and on which people's lives may be at stake.
The second point I wish to make follows from what the noble Lord, Lord Harris of Greenwich, was saying. Because of the manner in which this amendment has been constructed, as I understand it what has been done is simply to put into statutory form what are the present arrangements under the White Paper. Therefore there is no suggestion whatever that the arrangements will be carried out differently from the present arrangements. All that is happening is that the present arrangements set out in the White Paper— which were monitored first by the noble and learned Lord, Lord Diplock, and now by the noble and learned Lord, Lord Bridge of Harwich—instead of being purely in an administrative White Paper are to be in the statute. They are exactly the same, as I understand what is attempted, as are presently in the administrative arrangements which have been fully described and monitored.
The third point is that the noble Lords, Lord Harris of Greenwich and Lord Mishcon, are forecasting what the court's judgment will be. That is an undertaking that I should not be prepared to take on board. One might have some views about the broad thrust of the judgment, possibly; but we are quite unable to say at this stage what the precise criticisms, if any, the court will have of our present arrangements. The noble Lord is saying with confidence that his amendment would precisely meet any judgment that the Court of Human Rights might deliver. I find it hard to know how he can say that with any confidence. These are all matters of importance certainly, but I would urge your Lordships that the Government view is a perfectly appropriate view to take at this stage and that the amendment should not be supported.
§ 3.50 p.m.
§ On Question, Whether the said amendment (No. 110) shall be agreed to?
§ Their Lordships divided: Contents, 129;Not-Contents, 112.644
|DIVISION NO. 1|
|Airedale, L.||Kilmarnock, L.|
|Amherst, E.||Kinloss, Ly.|
|Ampthill, L.||Leatherland, L.|
|Ardwick, L.||Llewelyn-Davies of Hastoe, B.|
|Attlee, E.||Lloyd of Hampstead, L.|
|Aylestone, L.||Lloyd of Kilgerran, L.|
|Banks, L.||Longford, E.|
|Barnett, L.||Loudoun, C.|
|Beswick, L.||McIntosh of Haringey, L.|
|Birk, B.||Mackie of Benshie, L.|
|Bishopston, L.||MacLeod of Fuinary, L.|
|Blyton, L.||McNair, L.|
|Boston of Faversham, L.||Mar, C.|
|Bottomley, L.||Milford, L.|
|Bowden, L.||Mishcon, L.|
|Brookes, L.||Molloy, L.|
|Brooks of Tremorfa, L.||Nicol, B.|
|Bruce of Donington, L.||O'Brien of Lothbury, L.|
|Buckmaster, V.||Oram, L.|
|Burton of Coventry, B.||Paget of Northampton, L.|
|Caccia, L.||Peart, L.|
|Caradon, L.||Phillips, B.|
|Carmichael of Kelvingrove, L.||Ponsonby of Shulbrede, L. [Teller.]|
|Cledwyn of Penrhos, L.||Raglan, L.|
|Collison, L.||Rathcreedan, L.|
|Cooper of Stockton Heath, L.||Reilly, L.|
|Darling of Hillsborough, L.||Rhodes, L.|
|David, B.||Rochester, L.|
|Dean of Beswick, L.||Ross of Marnock, L.|
|Diamond, L.||St. Davids, V.|
|Donaldson of Kingsbridge, L.||Seear, B.|
|Donnett of Balgay, L.||Seebohm, L.|
|Edmund-Davies, L.||Sefton of Garston, L.|
|Ennals, L.||Segal, L.|
|Ewart-Biggs, B.||Shackleton, L.|
|Ezra, L.||Shaughnessy, L.|
|Gaitskell, B.||Shinwell, L.|
|Gallacher, L.||Simon, V.|
|Galpern, L.||Somers, L.|
|George-Brown, L.||Soper, L.|
|Gladwyn, L.||Spens, L.|
|Gormley, L.||Stallard, L.|
|Graham of Edmonton, L. [Teller.]||Stamp, L.|
|Hale, L.||Stewart of Alvechurch, B.|
|Hampton, L.||Stewart of Fulham, L.|
|Hanworth, V.||Stoddart of Swindon, L.|
|Harris of Greenwich, L.||Stone, L.|
|Hayter, L.||Strabolgi, L.|
|Henniker, L.||Taylor of Blackburn, L.|
|Hereford, Bp.||Taylor of Gryfe, L.|
|Hooson, L.||Taylor of Mansfield, L.|
|Houghton of Sowerby, L.||Tordoff, L.|
|Hughes, L.||Underhill, L.|
|Hunt, L.||Wallace of Coslany, L.|
|Hunter of Newington, L.||Wedderburn of Charlton, L.|
|Hylton-Foster, B.||Wells-Pestell, L.|
|Ilchester, E.||Whaddon, L.|
|Irving of Dartford, L.||White, B.|
|Jacques, L.||Wigoder, L.|
|Jenkins of Putney, L.||Wilberforce, L.|
|John-Mackie, L.||Wilson of Rievaulx, L.|
|Kagan, L.||Winstanley, L.|
|Kaldor, L.||Wootton of Abinger, B.|
|Abercorn, D.||Long, V.|
|Ailesbury, M.||Lovat, L.|
|Airey of Abingdon, B.||Lucas of Chilworth, L.|
|Allerton, L.||Lyell, L.|
|Avon, E.||McAlpine of Moffat, L.|
|Bauer, L.||McAlpine of West Green, L.|
|Belhaven and Stenton, L.||Mackay of Clashfern, L.|
|Belstead, L.||Macleod of Borve, B.|
|Bessborough, E.||Macpherson of Drumochter, L.|
|Broxbourne, L.||Mancroft, L.|
|Bruce-Gardyne, L.||Mansfield, E.|
|Caithness, E.||Margadale, L.|
|Campbell of Croy, L.||Marley, L.|
|Carnegy of Lour, B.||Merrivale, L.|
|Chelmer, L.||Middleton, L.|
|Clancarty, E.||Milverton, L.|
|Clitheroe, L.||Molson, L.|
|Cockfield, L.||Monk Bretton, L.|
|Coleraine, L.||Montgomery of Alamein, V.|
|Cottesloe, L.||Morris, L.|
|Cullen of Ashbourne, L.||Mottistone, L.|
|Daventry, V.||Mowbray and Stourton, L|
|De Freyne, L.||Murton of Lindisfarne, L.|
|De La Warr, E.||Northchurch, B.|
|Denham, L. [Teller.]||Nugent of Guildford, L.|
|Drumalbyn, L.||Onslow, E.|
|Duncan-Sandys, L.||Peyton of Yeovil, L.|
|Dundee, E.||Portland, D.|
|Ebbisham, L.||Rankeillour, L.|
|Effingham, E.||Rochdale, V.|
|Ellenborough, L.||Romney, E.|
|Elliot of Harwood, B.||Saint Oswald, L.|
|Elphinstone, L.||Sandys, L.|
|Elton, L.||Selkirk, E.|
|Enniskillen, E.||Sempill, Ly.|
|Ferrier, L.||Sharples, B.|
|Fraser of Kilmorack, L.||Sherfield, L.|
|Gainford, L.||Skelmersdale, L.|
|Glanusk, L.||Stodart of Leaston, L.|
|Glenarthur, L.||Strathcarron, L.|
|Gray of Contin, L.||Sudeley, L.|
|Gridley, L.||Suffield, L.|
|Hailsham of Saint Marylebone, L.||Swinton, E. [Teller.]|
|Hampden, V.||Teynham, L.|
|Harmar-Nicholls, L.||Thorneycroft, L.|
|Harvey of Prestbury, L.||Torphichen, L.|
|Henley, L.||Tranmire, L.|
|Hives, L.||Trenchard, V.|
|Home of the Hirsel, L.||Trumpington, B.|
|Hornsby-Smith, B.||Ullswater, V.|
|Ingrow, L.||Vaux of Harrowden, L.|
|Kaberry of Adel, L.||Vickers, B.|
|Kinnaird, L.||Vivian, L.|
|Lane-Fox, B.||Whitelaw, V.|
|Lauderdale, E.||Young, B.|
§ Resolved in the affirmative, and amendment agreed to accordingly.
§ House resumed.