Interception of Communications (Hansard, 7 February 1985)

§ Viscount Whitelaw
My Lords, with the leave of the House I shall now repeat a Statement concerning the interception of communications which is at present being made in another place by my right honourable friend the Home Secretary. The Statement is as follows:
"I am today presenting a White Paper on the interception of communications in the United Kingdom. Copies are available in the Vote Office. The White Paper sets out the present position on interception authorised by all the Secretaries of State concerned. It outlines the main features of the Bill which the Government will introduce next week in fulfilment of their undertaking, and it describes how effect will be given to the legislation. It supplements the White Paper published in 1980 and gives the figures for the number of warrants issued by the Home Secretary, the Secretary of State for Scotland and the Foreign and Commonwealth Secretary in recent years.
"I would stress at the outset that the Government are not, through the proposed legislation, in any way either seeking or permitting the extension of the present scope of interception. The Bill will, however, establish a comprehensive statutory framework for the interception of communications, which are defined for these purposes as all forms of telecommunications in the public networks and also the post. It will incorporate into the law the existing stringent controls and limitations. It will define the grounds on which a Secretary of State will be empowered to authorise interception. These are in 1231 line with existing practice and are narrower than those specified in the European Convention. They will be national security, the prevention and detection of serious crime, and the safeguarding of the economic well-being of the United Kingdom. In the latter case, interception will only be permissible when it is for the purpose of obtaining information about events outside the country. Unauthorised interception will be made a criminal offence.
"The legislation will also greatly increase the existing safeguards, not only by creating the new criminal offence but also by providing a means of redress for those wishing to complain that interception has been improperly authorised. An independent tribunal will be established to adjudicate on complaints. It will be able to get at all the facts, and if it concludes that the issue of a warrant does not come within the statutory criteria it will be able to quash the warrant and award compensation. The post of the existing monitor of interception arrangements will be replaced by a statutory commissioner. He will be given the task of keeping under continuing review the exercise of the Secretary of State's powers and all the arrangements to do with the issue and execution of warrants. The Bill will lay down requirements to secure the proper handling of intercepted material.
"Communications of the kind covered by the Bill merit special protection because they are committed by somebody into the custody of a carrier over whom he has no control. Legislation to deal with other aspects of privacy, such as surveillance, gives rise to quite different and so far unresolved issues.
"Parliament will shortly have the opportunity to consider the provisions of the proposed Bill in detail, though honourable Members will appreciate the constraints which must inevitably apply to what can be said about some aspects of these matters. The interception of communications is always distasteful but sometimes essential if serious crime is to be thwarted, terrorism effectively combated and our national security adequately safeguarded. But it is right that the extent of interception should be strictly limited and a means of redress provided where it has wrongfully taken place.
"I commend the Government proposals to the House. I believe that they strike the right balance and that they will ensure that that balance is effectively maintained".

§ Lord Mishcon
My Lords, the House will be grateful to the noble Viscount the Leader of the House for repeating this Statement which was made by his right honourable friend the Home Secretary. However, the House owes another debt of gratitude to the noble Viscount. As one would expect, he has fully honoured the undertaking which he gave to this House on behalf of Her Majesty's Government when your Lordships passed an amendment to the Telecommunications Bill, an amendment which was contrary to the Government's wishes. From these Benches I had the privilege of moving that amendment in your Lordships' House. Therefore, from these Benches I 1232 again thank the noble Viscount for the faithful way in which he carried out every word he uttered following the passing of that amendment.
No one has had an opportunity to look at the White Paper, which has only been placed in the Vote Office today. Therefore, one has to concentrate upon the wording of this Statement, upon which I have merely a few comments. Because of that inability to read the details in the White Paper, the wording of this Statement (which will obviously be publicised) seems to be of great importance in relation to this most important matter. My eyes lighted upon a sentence which I found very difficult to comprehend and which may give rise to quite a bit of uncertainty. Therefore, I direct a question to the noble Viscount upon it. The Statement says that the grounds that will govern this matter: are narrower than those specified in the European Convention. They will be … the prevention and detection of serious crime". I make no comment upon that. Another is national security, and there is no question about that. Then it says: the safeguarding of the economic well-being of the United Kingdom". If that was all that was said, I should not have a question to ask. But that is defined as follows: In the latter case, interception will only be permissible when it is for the purpose of obtaining information about events outside the country". In order that all foreign businessmen should not be uneasy and in order that commercial enterprises in this country which have telephone communication with foreign businesses should not feel uneasy, I ask the noble Viscount to relieve their anxieties by saying exactly what that means. Does it mean that every telephone conversation of that nature could be listened to and intercepted in order to discover whether there is any information outside this country which in any way affects the commercial wellbeing of the United Kingdom? It would be an odd state of affairs, especially if there were competitive tenders for any large contract.
We then learn—and this is extremely interesting—that an independent tribunal is to be established to adjudicate on complaints. Can the noble Viscount indicate the likely personnel of such a tribunal? Finally, there is the new appointment of a statutory commissioner. Is he to be accountable to Parliament?

§ Lord Harris of Greenwich
My Lords, I, too, should like to thank the noble Viscount, Lord Whitelaw, for having repeated in this House the Statement made by the Home Secretary in another place. Is the noble Viscount aware that we too thank him for having honoured in full the commitment that he entered into after the House had decided on an all-party amendment to the Telecommunications Bill? Is he aware that we unreservedly welcome the proposal to appoint an independent tribunal to adjudicate upon complaints? That is clearly right.
However, at first sight we too should like some explanation of the rather curious phrase about the safeguarding of the economic wellbeing of the United Kingdom. Is the noble Viscount aware that we recognise that the Government have come forward 1233 with this proposal following not only the decision of the House on the Telecommunications Bill, but also the decision of the Vice-Chancellor and the European Court of Human Rights? As I have indicated, we welcome that unreservedly.
Finally, is the noble Viscount aware that those of us on these Benches, and I am sure the House as a whole, recognise that telephone interception is crucially important if we are to take vigorous action to deal both with sophisticated international criminals and with the growing threat posed by international terrorists in Europe?

§ Viscount Whitelaw
My Lords, I am grateful to both noble Lords for their reception of the Statement. I am particularly grateful to the noble Lord, Lord Mishcon, who thanked me for honouring the undertaking that I gave during the passage of the Telecommunications Bill. That was generous of him and I appreciate it. I am grateful to the noble Lord, Lord Harris of Greenwich, for the welcome that he gave to the proposals which we are putting forward.
The noble Lord, Lord Mishcon, asked me about the phrase: safeguarding the economic well-being of the United Kingdom". The Bill will make it clear that this applies only to matters outside this country. Domestic developments cannot give rise to interception on the grounds that they might affect the economy. This provision is obviously not aimed at business people or trade unions in this country. We are talking about interception in support of the Government's overseas policy. A major part of overseas policy has to do with protecting our economy. Adverse developments abroad may have a significant impact on the wellbeing of the economy. We cannot exclude situations where intelligence on such matters could and might be vital to the national interest. That is the purpose of that proposal.
The noble Lord, Lord Mishcon, welcomed the idea of the independent tribunal. The actual details of this body will be published in the Bill and will be able to be discussed on the Bill. As for the statutory commissioner, the first commissioner was the noble and learned Lord, Lord Diplock, who was Judicial Monitor; then there was the noble and learned Lord, Lord Bridge of Harwich. Both held office when I was Home Secretary; both reported to the Prime Minister and were responsible to the Prime Minister who, in her turn, is responsible to Parliament. The same procedure would apply in this case.