Interception of Communications Bill

HL Deb 01 July 1985 vol 465 cc973-1005

4.7 p.m.

Consideration of amendments on Report resumed.

Clause 6 [Safeguards]:

Viscount Whitelaw moved Amendment No. 4: Page 5, line 35, leave out ("subsection (2)") and insert ("subsections (2) and (3)").

The noble Viscount said: My Lords, I imagine it would be appropriate to take with this amendment Amendments Nos. 5, 6 and 7: Amendment No. 5: Page 6, line 3, at end insert ("and"). Amendment No. 6: Page 6, leave out lines 5 to 7. Amendment No. 7: Page 6, line 9, at end insert— ("(3) The requirements of this subsection are satisfied in relation to any intercepted material if each copy made of any of that material is destroyed as soon as its retention is no longer necessary as mentioned in section 2(2) above.").

The noble Lord, Lord Mishcon, moved an amendment in Committee designed to secure an express reference to the destruction of intercepted material in Clause 6. For technical reasons, the Government felt unable to accept the change in those terms, although, as I said on that occasion, the noble Lord and the Government were at one on the need for irrelevant material to be destroyed. I also gladly acknowledged that the noble Lord had done your Lordships a considerable service by highlighting the fact that the clause did not refer expressly to destruction, although in the Government's view it secured it in practice. I accepted that this was something which could be made clearer in the clause and I undertook to bring forward a Government amendment for that purpose.

The effect of the change is this. The arrangements which the Secretary of State is required to make if they are not already in existence must secure the destruction of copies of intercepted material as soon as their retention is no longer necessary on the grounds set out in Clause 2(2) for the issue of warrants. This formula is in substitution for the existing Clause 6(2)(e), which dealt with retention but did not refer to destruction. The other requirements of Clause 6(2), such as keeping the number of copies to the minimum, are unaffected.

I believe that this change places beyond any doubt that material must be destroyed as soon as it no longer meets the purposes for which warrants can be issued. The amendments are designed to be in complete fulfilment of my undertaking to the noble Lord, and I hope he will feel that this is the case. I believe the Bill will be the better for these amendments and I repeat the Government's appreciation of the way in which the noble Lord indentified the need for them.

Lord Mishcon

My Lords, I should like to express the gratitude of the Benches that I represent as well as that of Lords on other Benches who might have agreed with the necessity for the amendment that has now been moved by the Government. We are most grateful.

I have a couple of comments to make briefly. If the noble Viscount feels that this is not the appropriate time to deal with my first point I shall well understand, but I am left in some doubt on the Government's amendment, which I approve, as to who is the party who will determine or check that the intercepted material is no longer necessary for the purposes of Clause 2(2). Is it to be the Secretary of State, the Minister or the commissioner? Who will it be?

The only other observation that I have to make is that, obviously, while I appreciate this amendment, I shall still be saying that the whole of this clause ought to be within the jurisdiction of the tribunal; and that will be the subject matter of another amendment that I shall be moving.

Viscount Whitelaw

My Lords, I think that I have the answer to the noble Lord's question. If it is not correct, I shall certainly write to him later. I understand that it would be for the person dealing with the material to make that decision but, of course, he will be subject to the commissioner's overall scrutiny.

On Question, amendment agreed to.

Viscount Whitelaw moved Amendment No. 5:

[Printed earlier.]

On Question, amendment agreed to.

Viscount Whitelaw moved Amendment No. 6:

[Printed earlier.]

On Question, amendment agreed to.

Viscount Whitelaw moved Amendment No. 7:

[Printed earlier.]

On Question, amendment agreed to.

Clause 7 [The Tribunal]:

4.15 p.m.

Lord Mishcon moved Amendment No. 8: Page 6, line 24, leave out ("5") and insert ("6").

The noble Lord said: My Lords, with your Lordships' permission, I propose to move Amendment No. 8 and to speak also to Amendments Nos. 10 and 12. Amendment No. 10: Page 7, line 4, leave out ("5") and insert ("6"). Amendment No. 12: Page 6, line 27, leave out ("5") and insert ("6").

I can do this, I hope, very succinctly. The Bill at the moment provides that if the tribunal when investigating a matter and applying the principles (as at the present wording) appropriate to an application for judicial review concludes that there has been a contravention of Clauses 2 to 5, it has to do certain things under Clause 7.

I ventured to make the point at Committee stage—and I now do it, if I may say so, with more emphasis—that the tribunal obviously ought to have the duty in such circumstances of reviewing whether the safeguards set out in the Bill in Clause 6 have been effected. I say that I move this amendment with more emphasis now, and certainly with more optimism, because we have now had from the Government an amendment which deals with the question of destruction at an appropriate time of material which is no longer required. The noble Viscount was kind enough to answer my question immediately—he said that if he found that it was not a correct answer, he would write to me—by saying, as I understood it, that the person in charge of the investigation or the interception would have the duty of destruction and so on.

This is a very vital matter, and one would imagine that the tribunal ought to be able to say, "Parliament saw to it that we were to look at whether the safeguards were carried out, as well. We found that one of the safeguards was not carried out. Far too many copies were made of this and there was a distribution which was quite unreasonable, and there was no destruction at the time when the material should have been destroyed. In those circumstances we are going to say that the complaining member of the public ought to receive some compensation or certainly some apology from the Secretary of State". At the present moment the tribunal is not allowed to review beyond Clauses 2 to 5 and presumably, with the powers that it has under this Bill, it is not allowed to deal with any safeguard that has not been kept to as enumerated in Clause 6. I beg to move.

Lord Campbell of Alloway

My Lords, with respect, does not the amendment ignore a fundamental distinction between Clauses 2 to 5 and Clause 6? At one time I was attracted to the amendment, until I saw the distinction. Is it not apparent that the Secretary of State's task under Clause 6 is different from that under Clauses 2 to 5, though it may not be apparent until one looks into it? Here the duty is to safeguard material after interception. The function is wholly administrative, to seek to ensure that the arrangements will secure the objectives set out in Clause 6.

If that is right, is it not again impracticable for the tribunal to consider such matters on the basis of contravention? An independent review of these Clause 6 functions is, as I understand it, and subject to correction, afforded by way of the commissioner under Clause 8(1)(a), with a duty to report inadequacies to the Prime Minister under Clause 8(5) (b). As the Bill stands, the functions of the tribunal are properly limited to the investigations of improperly authorised interception—that is under Clauses 2 to 5—as distinct from investigations of unlawful interception under Clause I, which are matters for the investigation of the police.

One returns—and perhaps I am wrong about this—to the position that the type of function under Clauses 2 to 5, which attracts, and rightly attracts, contravention, is wholly distinct from the type of administrative function under Clause 6 which would be wholly impracticable. I would suggest, to have treated on a basis of contravention because there is such an element of discretion in it that it is not susceptible to treatment as a contravention. But perhaps that view is incorrect.

Viscount Whitelaw

My Lords, in responding to the arguments put forward by the noble Lord, Lord Mishcon, when he moved this amendment in Committee, I said that I feared that I had failed completely to catch the point that he was putting to me. I undertook to give very careful consideration to what he had said. Having read what I said, I think that I understated that position. I had clearly not taken on board the point which the noble Lord was making and I am very grateful to him for coming forward again. I hope that this time at least I shall be able to answer fully the point that he made. Whether or not I shall satisfy him by doing so remains to be seen, but at least I think I can give him a very clear argument on this occasion.

As a result, I should like to respond carefully and thoroughly to the noble Lord. I think I owe him that. It is very important. Therefore, before turning to the point that he has just made, I shall dwell for a moment on some general but I think very pertinent considerations which follow from what my noble friend Lord Campbell of Alloway has said.

The purpose of the noble Lord's amendments is to extend the remit of the tribunal from the warrant provisions in Clauses 2 to 5 to include additionally the safeguard provisions in Clause 6. These two sets of provisions are of very different character and their difference lies at the heart of this question. My noble friend Lord Campbell of Alloway is quite right in that. Clauses 2 to 5 deal with the issue of warrants and with all the associated matters, such as renewal and cancellation. They are about decisions taken personally by the Secretary of State on specified statutory grounds. They are individual and identifiable decisions related to particular warrants. These decisions will be based upon the Secretary of State's consideration of a variety of factors, each judged against the relevant statutory criteria. In the nature of things, all these considerations will have been set down for the Secretary of State and the decisions themselves will have been recorded with his signature on the document in question.

Clause 6 is entirely different. It is concerned with arrangements which have been put in place in order to secure the proper handling of intercepted material. These arrangements therefore do not deal with the act of interception as such but with what happens afterwards. The arrangements will, for example, secure that the material is properly looked after and that only the minimum number of people are made privy to it as is necessary for the purposes set out in Clause 2(2). Your Lordships have already considered an amendment clarifying that material will be destroyed when its retention is no longer necessary.

At the heart of this clause, therefore, lies not a series of decisions by a particular person but a series of administrative arrangements which have a clear purpose but which will in themselves differ significantly according to particular circumstances. The Secretary of State's task in Clause 6 has a result of a quite different kind from that in Clauses 2 to 5. In the case of Clause 6, he has to make arrangements unless the arrangements are already in place. It is not he who gives effect to those arrangements on a day-to-day basis. They will be implemented by a variety of people who take decisions to disclose a particular item to this person but not to that one, who conclude that it should not be retained or who decide that it is necessary to take one copy but not to take more.

They will take these decisions on the basis of the administrative arrangements about which the Secretary of State has satisfied himself, but they could not conceivably be the Secretary of State's personal decisions. Nor is it realistic to conceive of them as decisions which will be documented with comprehensive submissions of the kind which will naturally be put to the Secretary of State when considering an application for a warrant.

I must ask your Lordships to consider the amendments in the light of these points and in the light also of the nature and purpose of the tribunal. It is the task of the tribunal to provide a remedy where the Secretary of State has taken an improper decision under his warrant powers. A person can make application to the tribunal, which in its turn determines whether there is a relevant warrant and, if there is, examines the decisions which the Secretary of State took.

Thus an application triggers the tribunal and its review stems from it. There is a specific and personal precise decision which the tribunal can examine, which will have been set out for the Secretary of State and on which it can call for the documents. Equally important, the decision it is concerned with is one which can be directly related to the application. There is a name or address which can be identified from the warrant in question. If it concludes that there has been a contravention, it can then exercise its various powers in relation to the applicant, whose identity will be known and who can be awarded compensation The process I have just described is a clear one—in some respects akin, as your Lordships have recognised, to the process before a court—but none of this applies in the case of the Clause 6 arrangements. These are essentially administrative procedures. They are not identifiable decisions in respect of which a remedy can be provided. They are given practical effect in a wide variety of different circumstances by many different people in situations sometimes of great urgency. I have had occasion before to tell your Lordships of the importance of speed in making use of intercepted material to prevent major crimes. The person concerned must exercise his best judgment in the light of the arrangements which the Secretary of State has required him to comply with. But I would emphasise to your Lordships that this is really an entirely different kind of situation from the one where the Secretary of State considers an application for a warrant.

Of course I should not like the noble Lord or your Lordships to think that the Government in any way underestimate the significance of these safeguarding arrangements. On the contrary, Clause 6 is in the Bill because the arrangements are so important. The commissioner is expressly charged with keeping them under continuing review, because there needs to be an independent check on how they are operating. He is required by Clause 8 to report to the Prime Minister if he concludes that any of the arrangements are inadequate. I need scarcely remind your Lordships that if there were such a report things can be expected to change very rapidly.

Your Lordships may also wish to consider for a moment the nature of the harm which might be done if in a particular case a bad decision was taken by somebody giving day-to-day effect to these arrangements. It might mean that whereas perhaps only two copies should have been taken and sent to those two people, three were taken, or some official learnt of an intercepted communication who on reflection could have managed without knowing. That is of a very different order to the wrongful issue of the warrant in the first place. If there should ever be an improper disclosure of intercepted material to the public, then that is an entirely different and extremely serious matter, but it is not one which necessitates the extension of the remit of the tribunal. The criminal law would apply, as it would in respect of any other disclosure of sensitive material held, for example, by central Government or by the police.

I believe that the Government and the noble Lord are at one on the two essential considerations. The first is the importance of the Clause 6 arrangements. They are vital, which is why they are set out so comprehensively and are subject to review by the commissioner. The second is the importance and effectiveness of the tribunal. It is not just that the decisions taken under the Clause 6 arrangements are different and intrinsically incapable of the same kind of review as the warrant decisions. It is that if the tribunal did have to scrutinise them it would be burdened with a task it could not undertake and which was quite inappropriate to a body of this semi-judicial kind. That would not enhance the tribunal or the remedy offered to the individual. It would severely detract from it.

I have dwelt at some considerable length in responding to the noble Lord's amendment. I felt that I owed it to him because I did not get the situation right during the Committee stage. I hope your Lordships will not think that I have spoken for too long, but following those exchanges it seemed to me to be right to set out the position very clearly. I hope the noble Lord will see that there are significant objections of practice and principle to the extension he seeks to the remit of the tribunal, that the safeguarding arrangements are there, supervised by the commissioner; and that he will be ready to withdraw his amendment.

Lord Foot

My Lords, I wonder whether I might intervene for one moment in order to try to clarify in my own mind one of the issues which appears to emerge from the argument to which we have been listening. As I understand it, the argument the noble Viscount advances is basically this. There is a fundamental difference of principle between the provisions of Clauses 2 to 5 and Clause 6. He says that it would be quite inappropriate for the tribunal to consider whether the arrangements which are made by the Secretary of State have in any particular case been complied with and have been conformed to.

As I understand it, the argument goes on to say that the remedy, if there has been a breach of the safeguards in any way, lies with the commissioner. It is his business to deal with any case in which the safeguards have been breached. I question whether that is right. The reason I question it is that when in considering the duties of the commissioner, one looks at Clause 8(1)(a) one finds that his duty is, to keep under review the carrying out by the Secretary of State of the functions conferred on him by sections 2 to 5 above and the adequacy of any arrangements made for the purposes of section 6 above". That, it seems to me, means that it is not the business of the commissioner to consider whether any arrangements which have been laid down in any particular case have been complied with. It is merely for him to consider whether the arrangements which were provided for by the Secretary of State in that particular case were adequate.

4.30 p.m.

If one looks further on in the clause and looks at subsection (5), one finds these words: If at any time it appears to the Commissioner… (b) that any arrangements made for the purposes of section 6 above have proved inadequate". There again the obligation thrown upon the comissioner is not to decide whether the arrangements have been complied with. He is merely to consider whether the arrangements which were laid down by the Secretary of State were initially adequate. If that is right, there is a clear omission from the Bill.

Consider these circumstances, my Lords. Let us suppose that there is a case in which arrangements have been made by the Secretary of State in connection with a particular case, and that those arrangements are grossly breached. Everything is done wrongly. Innumerable copies of certain material are distributed to all and sundry. Where is the remedy? The remedy does not lie in the commissioner's hands. It is no part of his business to decide whether the arrangements have been complied with. As matters stand, and if the amendment of the noble Lord, Mishcon, is not carried, it is no business at all of the tribunal to deal with the matter. There is no remedy at all, as I understand it, provided by the Bill in circumstances of that kind. I would therefore invite the noble Viscount to consider that matter and let me know whether there is, in fact, some sufficient safeguard that I have overlooked.

Viscount Whitelaw

My Lords, with the leave of the House, I shall first seek to reply briefly to the noble Lord, Lord Foot. I shall also undertake to consider further the points that he has made. In considering the adequacy of the arrangements, the commissioner is bound to judge how they are given effect to. Indeed, he has at the same time through Clause 2 to deal with their general work and with their implementation and, as I am advised, it is all in Clause 6(2). But in view of the very important point made by the noble Lord, I shall of course check this.

Lord Mishcon

My Lords, I am in an unfortunate position. The speech that I made at Committee stage which followed upon putting down the amendment was one that the noble Viscount said, with his usual frankness, seemed to throw up points—if I may paraphrase, I hope fairly, his remarks—which had not been understood as being relevant to the amendment that I had put down. When I made the speech he was kind enough to say that he now understood the point and that the Government would be considering that speech and the reasons I had advanced for the amendment.

One of the points I made at Committee stage, if I recollect correctly, was the very point, though I did not specifically refer to Clause 8, that the noble Lord, Lord Foot, has mentioned now; namely, that unless the matter came before the tribunal, there was no remedy, to deal with safeguards that had been completely and absolutely overlooked. The complainant would have nowhere to go. He has no right to go to the commissioner to get any remedy. His sole remedy is from the five good and true lawyers who will form the tribunal and who will be sitting in private to consider whether damage has been sustained which ought not to have been sustained by the complaining member of the public.

The noble Lord, Lord Foot, cited one example—and he was so correct—as to the harm that might be done if, instead of three copies being made—and the arrangement made by the Secretary of State was for two—everything had been completely, hopelessly and recklessly dealt with. The noble Lord might have gone on to ask, as I seek to do now: what happens if there is a breach of the arrangement by way of safeguard as to the number of persons to whom any of the material is disclosed? Some officer, disobedient to the Secretary of State's arrangements, overlooks it and behaves recklessly. The tribunal, looking at the way in which the warrant was issued, finds that in fact the party concerned is a perfectly innocent party, and in disregard of' the Secretary of State's arrangements the material has been circulated to 12, 13 or 14 people in a way most harmful to the person complaining, the member of the public.

Under the Bill as at present worded, the tribunal will say, "Well, Parliament discussed this, Parliament knew about it, but Parliament has not given us any right to look at a breach of Clause 6". It is quite right, as the noble Lord, Lord Foot, says, that the commissioner could not look at it, except in a general way as to whether arrangements are in fact adequate for the carrying out of the safeguards. We cannot award compensation here, however much we feel for this man. So far as I know, he has no other remedy at all at law, unless we give him one.

I am therefore in this difficulty. The noble Viscount now, at Report stage, says that this is a point that he should like to look at. As I said, possibly quite inadequately, I tried to raise the point at Committee stage. I wonder whether it would help the Government—and I mean this with all sincerity—if the House expressed its view on what is referred to in Clause 6 being included as a matter that the tribunal would have jurisdiction over. Then, quite obviously, if the Government took the view, if it were carried that there was a complete and absolute answer to this point, it could be dealt with at the remaining stage, Third Reading.

We are at a very late stage of our consideration of the Bill, but I feel that I would not be doing my duty—and I hope the noble Viscount will understand me when I say this—and I imagine the noble Lord, Lord Foot, though I cannot speak for him, would feel that he would not be doing his duty, if at Report stage at all events we did not include Clause 6 in these provisions. At the present moment, therefore, it is my intention to seek the view of the House.

Viscount Whitelaw

My Lords, before the noble Lord sits down, perhaps I may say this. Obviously I have not persuaded him that in general terms it would he wrong to extend the jurisdiction of the tribunal beyond the area of Clauses 2 to 5, which deal with warrants involving the Secretary of State. That, I believe, is fundamental to the Bill. The safeguards, we believe, are better and could be dealt with only by the commissioner. That is the difference between us.

With regard to the point made by the noble Lord, Lord Foot, I shall come back to that, even at this late stage of the Bill, simply to check that what I have said is correct. If it is not, there is, I understand, at the last stage of the Bill the opportunity for the Government to put the matter right, if necessary. But, of course, in the meantime I accept that if I do not carry the noble Lord with me, in that Clauses 2 to 5 on the issue of warrants are for the tribunal, and Clause 6 on safeguards is for the commissioner, he will no doubt wish to take the view of the House.

Lord Denning

My Lords, having heard my noble friend Lord Mishcon, I was at first persuaded in favour of his amendment, but having heard my noble friend Lord Whitelaw I was persuaded the other way. That is because matters of whether or not the safeguards have been complied with are not really appropriate for the tribunal, but they are appropriate for the commissioner to inquire into. I refer to subsections (5) and (6) of Clause 8. Inquiring into whether there has been a breach of the safeguards involves an inquiry as to whether or not they have been adequate. So, on the whole, I would be against the amendment.

Lord Mishcon

My Lords, again with the leave of the House—and I promise that I shall be very brief—the noble and learned Lord, Lord Denning, and I have a very happy relationship which I hope will last for many years. The relationship is such that at Committee stage he equally said that he agreed with me when I had spoken, and then took a different view when the noble Viscount had spoken. So I find a repetition of the act at Report stage and I can only hope that at Third Reading the position will be reversed.

But this is a matter of principle. I should just like to emphasise one point, which is that the Secretary of State has himself some duties under Clause 6 and, therefore, if he did not carry them out by making any of these safeguard arrangements, again the complainant would have no right to get damages from the tribunal. I think it would be suitable for the opinion of the House to be taken.

4.42 p.m.

On Question, Whether the said Amendment (No. 8) shall be agreed to?

Their Lordships Divided: Contents, 63; Not-Contents, 98.

DIVISION NO. 2
CONTENTS
Airedale, L.	Donaldson of Kingsbridge, L.
Amherst, E.	Elwyn-Jones, L.
Attlee, E.	Ennals, L.
Aylestone, L.	Fisher of Rednal, B.
Banks, L.	Foot, L.
Beaumont of Whitley, L.	Gallacher, L.
Birk, B.	Galpern, L.
Blyton, L.	Gladwyn, L.
Brockway, L.	Graham of Edmonton, L. [Teller.]
Bruce of Donington, L.
Caradon, L.	Hampton, L.
Cledwyn of Penrhos, L.	Harris of Greenwich, L.
Collison, L.	Houghton of Sowerby, I.
David, B.	Howie of Troon, L.
Davies of Leek, L.	Hunt, L.
Davies of Penrhys, L.	Jenkins of Putney, L.
Dean of Beswick, L.	Kilmarnock, L.
Diamond, L.	Kirkhill, L.

Leatherland, L.	Roberthall, L.
Listowel, E.	Sainsbury, L.
Llewelyn-Davies of Hastoe, B.	Serota, B.
McNair, L.	Shepherd, L.
Mishcon, L.	Stallard, L.
Molloy, L.	Stewart of Fulham, L.
Morton of Shuna, L.	Stoddart of Swindon, L.
Mulley, L.	Strabolgi, L.
Nicol, B.	Taylor of Blackburn, L.
O'Neill of the Maine, L.	Taylor of Mansfield, L.
Oram, L.	Turner of Camden, B.
Phillips, B.	Wallace of Coslany, L.
Pitt of Hampstead, L.	Wigoder, L.
Ponsonby of Shulbrede, L. [Teller.]	Wilson of Langside, L.

NOT-CONTENTS
Airey of Abingdon, B.	Kinnaird, L.
Alexander of Tunis, E.	Lane-Fox, B.
Ampthill, L.	Lauderdale, E.
Arran, L.	Long, V. [Teller.]
Belhaven and Stenton, L.	Luke, L.
Beloff, L.	Lyell, L.
Belstead, L.	McAlpine of West Green, L
Bessborough, E.	Mancroft, L.
Boyd-Carpenter, L.	Marley, L.
Brabazon of Tara, L.	Marsh, L.
Brougham and Vaux, L.	Maude of Stratford-upon-Avon, L.
Caithness, E.
Cameron of Lochbroom, L.	Merrivale, L.
Campbell of Alloway, L.	Mersey, V.
Cayzer, L.	Milverton, L.
Coleraine, L.	Mottistone, L.
Cottesloe, L.	Mowbray and Stourton, L.
Cowley, E.	Murton of Lindisfarne, L.
Cox, B.	Norfolk D.
Craigavon, V.	Nugent of Guildford, L.
Cullen of Ashbourne, L.	Orkney, E.
Davidson, V.	Pender, L.
Denham, L. [Teller.]	Peyton of Yeovil, L.
Denning, L.	Porritt, L.
Drumalbyn, L.	Portland, D.
Dundonald, E.	Rankeillour, L.
Ellenborough, L.	Rawlinson of Ewell, L.
Elton, L.	Russell of Liverpool, L.
Faithfull, B.	St. Aldwyn, E.
Fanshawe of Richmond, L.	St. Davids, V.
Fortescue, E.	Sandford, L.
Fraser of Kilmorack, L.	Sharpies, B.
Gainford, L.	Skelmersdale, L.
Glenarthur, L.	Somers, L.
Gray of Contin, L.	Stamp, L.
Hailsham of Saint Marylebone, L.	Sudeley, L.
	Terrington, L.
Halsbury, E.	Teviot, L.
Hannar-Nicholls, L.	Teynham, L.
Hayter, L.	Trefgarne, L.
Hemphill, L.	Trenchard, V.
Holdemess, L.	Trumpington, B.
Home of the Hirsel, L.	Vaux of Harrowden, L.
Hood, V.	Vickers, B.
Hooper, B.	Vivian, L.
Hylton-Foster, B.	Westbury, L.
Ilchester, E.	Whitelaw, V.
Killearn, L.	Wise, L.
Kimball, L.	Wynford, L.
Kinloss, Ly.	Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

4.50 p.m.

The Deputy Speaker (Lord Nugent of Guildford)

My Lords, I should inform the House that the amendments are arranged in the wrong order on the Marshalled List. Amendment No. 11 is the next to be called. I should further explain that if Amendment No. 11 is agreed to, I cannot call Amendment No. 9.

Lord Mishcon moved Amendment No. 11: Page 6, line 25, leave out from ("Tribunal,") to ("an") in line 26, and insert ("sitting as if they were a court dealing with").

The noble Lord said: My Lords, it is obviously sensible that this amendment and Amendment No. 9 should be taken together, and I am therefore speaking to both amendments. Amendment No. 9: Page 6, line 26, after ("applicable") insert ("by a court").

Your Lordships will remember that the Bill directs that the tribunal when it sits should adopt the rules applicable to a judicial review. I ventured to say at the Committee stage that those words were very indefinite and very vague. One did not know whether any rules of the Supreme Court were being referred to; and indeed one did not know to what extent this could possibly be interpreted in view of the fact that the precedents might vary from time to time. Indeed, one wonders whether it was the Wednesbury principle, the fairness of decision-making, rather than the decision itself, which was being governed by these words.

I sought then to insert the words, sitting as if they were a court dealing with a judicial review. The noble Viscount, to whose command of the Bill and the manner in which it is being conducted by him I have already paid tribute (and I do it again), said that he would consider the point, which appeared to him to have some sort of merit. I repeated on that basis the words, sitting as if they were a court dealing with a judicial review. Then the Government put down an amendment carrying out that consideration of what I had said which the noble Viscount was good enough to promise, and that amendment can be seen as Amendment No. 9. It is obviously sensible that the amendments should be taken together.

I am not going to quarrel with the wording of the Government amendment. Does it sound conceited if I still say that I prefer my own wording? But if the Government on advice find that their wording is superior to that which I put down, and there is some reason for that superiority, I shall gladly yield. I beg to move.

Lord Campbell of Alloway

My Lords, I support both amendments, which really seek to achieve the same object. It is a question of drafting. They are concerned with the procedural questions as to the conduct of an investigation by the tribunal under Clause 7. It raises a problem, because if the tribunal is sitting as a court what are to be the rules of procedure? We have heard that counsel may not appear, and so forth. It is quite plain that, at some time, in some place, consideration may well have to be given to some rules of procedure or guidelines so that this matter, which is a matter of considerable importance to the public, should, so to speak, receive acceptability in the eyes of the public. I raise this point perhaps rather in the spirit that the noble Lord, Lord Foot, raised his last point, to inquire and to seek information and some measure of clarification.

There is also a side effect to importing in either of these amendments the concept of "sitting as a court", which I wholly support. As the tribunal is not subject to any challenge in the courts there is no way in which the conduct of the proceedings, as distinct from the decision in the proceedings, could be open to challenge other than by seeking a declaration that in reaching its decision the tribunal had failed to comply with the rules of natural justice. The grant of such relief is not expressly ousted; it is, as your Lordships know, discretionary; and it is very much to be doubted whether the courts on judicial review would entertain any such application for a declaration that the conduct of the proceedings was open to objection in circumstances where they could not grant the consequential substantive relief and quash the decision.

On the assumption that the courts would decline jurisdiction to entertain complaints about the conduct of the tribunal, these amendments raise the practical question of rules of procedure. I say that because if there were rules of procedure and if there were a complaint about infringement of those rules of procedure, the court could and would (and under this Bill there would be no ouster) consider the complaint as to the conduct of the proceedings; for this would in no way contravene the ouster of Clause 9(1) and lead-in evidence. Behind all this, is there not a joker in the pack?

Lord Denning

My Lords, it may look as though it is a question of words; but if it is I say that I would prefer Amendment No. 9—"the principles applicable by a court"—put forward on behalf of the Government. I do so for this reason. The principles on judicial review are reasonably well settled now. For instance, the court can interfere with the decision of the Secretary of State if he is not acting in accordance with natural justice; it can interfere if he has misdirected himself on a point of law; it can also interfere if the decision or his warrant was utterly unreasonable. Those are the principles applicable to judicial review. They have been well settled by the courts over the past 10 years.

It is simply that the tribunal should apply the principles "applicable by a court". It might be embarrassing if we took the other words put forward by the noble Lord, Lord Mishcon: sitting as if they were a court dealing with". We might have all sorts of questions such as what would the court do, what counsel would appear before it, and so on. It may be a matter of words, but as between the two I personally would prefer Amendment No. 9 to Amendment No. 11.

Viscount Whitelaw

My Lords, I think I can say on this occasion that the noble Lord, Lord Mishcon, the Government and I were all on the same side and that it is purely a matter of drafting. I was going to give some of the reasons for preferring Amendment No. 9 to Amendment No. 11 which the noble and learned Lord, Lord Denning, has given. It will be quite unnecessary for me to repeat those reasons, but they were the reasons we felt that Amendment No. 9 was the better of the two.

5 p.m.

My noble friend Lord Campbell made a very interesting suggestion concerning the rules of procedure for the tribunal and the possibility that they could be subject to judicial review without breaching the prohibition in Clause 9 regarding individual cases. I know that he has very much in mind—as we all do—the importance of securing public confidence in the tribunal. The Government of course attach great importance to that. It is for that reason that the tribunal has been constituted in the way it has, with, for example, the same method of appointment as that of the Parliamentary Commissioner of Administration, and the same protection from dismissal, save with the agreement of Parliament.

It is of course essential that the tribunal is composed of people who, by their stature and abilities, themselves command confidence. The Government will of course make recommendations to that end. The tribunal, moreover, has very considerable power to secure relevant material and, if it judges it to be necessary, to quash a warrant of the Secretary of State and to award compensation in any amount it chooses. These factors are all very material, not only in ensuring that the tribunal is the effective remedy that the Government wish it to be but also in securing public confidence.

My noble friend has made an important point. In the way in which the constructions are given to the tribunal and clearly set out in the Act as substantiated, I believe that we can go a long way to meet the point my noble friend put forward very fairly.

Lord Mishcon

My Lords, it remains for me very briefly to repeat what I said before—that if the Government feel that the words proposed are superior, and they are reinforced by the view of the noble and learned Lord, Lord Denning, then I would be the last person in the world to argue over semantics at this stage. In withdrawing my amendment, I believe that the proper thing for me to do in a moment, on the basis that the Government's amendment, Amendment No. 9, will be accepted—would he to withdraw Amendment No. 11. I believe that would be the appropriate way of dealing with this matter.

Amendment, by leave, withdrawn.

Viscount Whitelaw moved Amendment No. 9:

[Printed earlier.]

On Question, amendment agreed to.

[Amendment No. 12 not moved.]

Lord Mishcon moved Amendment No. 13:

Page 6, line 33, at end insert— (" ( ) If on an investigation the Tribunal conclude that there was no relevant warrant or certificate and it appears to them that an offence under section 1 above may have been committed, they shall—

1. (a) give notice to the applicant stating that conclusion; and
2. (b) make a report to the Secretary of State.").

The noble Lord said: My Lords, at Committee stage I put forward the view, supported by an appropriate amendment, that the tribunal should have the right, where there was no relevant warrant or certificate and it appeared to the tribunal that an offence under Clause 1 had been committed, to give notice to the applicant stating its conclusion and make a report to the Secretary of State.

In replying to that amendment, the Lord President of the Council pointed out—upon reflection, correctly in my view—that for a report to be made to the Secretary of State in any event was quite inappropriate in the circumstances of this matter and having regard to his duties. I accept that point at once.

My concern, however, was, in general terms, that the tribunal should not think that it was ousted from being able to deal with the matter in the way that I suggested in my amendment. I put it to the Committee that some consideration should be given as to whether, in default of my amendment being passed, there should not be an understanding that there would be guidelines. I refer to our Committee proceedings on the Bill, when the noble Viscount was gracious enough to say this: In responding to the noble Lord, Lord Mishcon, on that earlier amendment, I promised to seek to put it on the face of the Bill—at that moment, against the advice of the noble and learned Lord, Lord Denning. Now the noble Lord, Lord Mishcon, and myself are I believe coming together in seeking to see whether it would be possible to put guidelines to the tribunal rather than on the face of the Bill. I cannot commit myself. The noble Lord is quite right. I do not know the position. I would have to consult with my colleagues, and of course, that I shall certainly do".—[Official Report, 6/6/85; col. 903.] It was because of that statement that I put my amendment down again: to give the noble Viscount the opportunity of saying where his consultations have led him. I beg to move.

Lord Campbell of Alloway

My Lords, I understand the spirit in which this amendment is moved but, very briefly, perhaps I may say that it surely raises an awkward question of principle. An essential element in the commission of this criminal offence, where it appears that an offence may have been committed, is the element of intention. I ask respectfully whether it is not beyond the remit of any tribunal to consider whether the intention of anyone was such as might render him liable to conviction—

Lord Mishcon

My Lords, I interrupt the noble Lord, Lord Campbell of Alloway, who is always very gracious in giving way, so that I may try to shorten these proceedings, I hope with the approval of your Lordships. I have said in what spirit I moved the amendment: it was to enable the noble Viscount to explain how far he had progressed on the question of guidelines. But in specific answer to the noble Lord, Lord Campbell, and with all deference, a Clause 1 offence is an absolute offence.

Lord Campbell of Alloway

My Lords, the Clause 1 offence is in these terms: Subject to the following provisions of this section, a person who intentionally intercepts". Therefore, with respect, it is, as I was suggesting, a question of intention. I suggest that it must be beyond the remit of any tribunal to consider whether the intention of anyone was such as might render him liable to conviction. But in view of what the noble Lord, Lord Mishcon, has just said, I am obviously prolonging these proceedings to no profitable purpose. I apologise to your Lordships and will sit down.

Viscount Whitelaw

My Lords, I am sure that my noble friend is not doing that, but as he has sat down I shall seek to answer the noble Lord, Lord Mishcon, and leave aside the other important point which my noble friend was making.

The noble Lord, Lord Mishcon, very fairly set out the reason he put down this amendment, and I hope that I can answer him. At the time in question, the noble Lord asked me to consider—and I said I would—whether the points he raised in Committee could be dealt with in guidelines to the tribunal.

The Government will naturally be anxious to help the tribunal fulfil all aspects of its tasks. The tribunal will have an important job and it must be given every facility, not least in the early days when it establishes its procedures. At the same time, it must be recognised that the tribunal is independent, set up under its own statutory provision and charged with reviewing the decisions of the Secretary of State. As your Lordships have acknowledged, it is fulfilling a task in some ways akin to that of a court, although procedurally and in other respects it is necessarily different.

It is essential that no Government in any circumstances should interfere with the independence of the tribunal or be thought in any way to be doing so. Indeed, the noble Lord, Lord Mishcon, recognised this in what he had to say. The very fact that it is the decisions of the Secretary of State which will be reviewed make it particularly important there is no suggestion of interference. In these circumstances, after consideration my colleagues and I were bound to conclude, for that very reason, that formal guidelines to the tribunal would not be right.

There will however be a number of things to do with the functions of the tribunal where it would be sensible for the Government to offer a view, not least about matters in which the Government have a direct and legitimate interest. If I may say so, the noble Lord has once again put his finger precisely on the relevant point in bringing this issue before your Lordships in the first place, and again today. This is because the terms of the tribunal's response to an applicant are crucial to the preservation of necessary secrecy and to the investigation of the offence, with both of which, at the general level, the Government are properly concerned. I can therefore assure the noble Lord that the tribunal's attention will be drawn to all this, and the Government will naturally be ready to ensure that it is drawn also to the points on this subject made by the noble Lord and others during the Bill's passage. I hope that the noble Lord will feel that, in the circumstances, it is the right approach that the Government should give their views and that his concern, which I fully understand, will be met by something less than formal guidelines, which would, in fact, have obvious dangers attached to them.

Lord Mishcon

My Lords, I am most grateful to the noble Viscount and in view of his remarks I have no hesitation whatever in asking leave of the House to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 10 not moved.]

Lord Harris of Greenwich moved Amendment No. 14: After Clause 8, insert the following new caxluse:

("Complaints Commissioner.

—(1) The Prime Minister shall appoint a person who holds or who has held a high public office (in this section referred to as the Complaints Commissioner) to carry out the following functions, namely—

1. (a) to investigate any complaint made to the Complaints Commissioner by a member of the Security Services in respect of an allegation of misconduct or abuse of lawful authority by another member of the Security Services in relation to the interception of communications; and
2. (b) to decide whether in all the circumstances any such allegation is of such a character and substance as to justify a report by the Complaints Commissioner to the relevant Secretary of State; and if this is the case,
3. (c) to make as soon as practicable, a report to the relevant Secretary of State with respect to the alleged complaint.

(2) The Complaints Commissioner shall hold office in accordance with the terms of his appointment.").

The noble Lord said: My Lords, this amendment stands in my name and that of my noble friend Lord Foot. Unhappily, I was not able to speak to a similar amendment in Committee tabled by my noble friend Lord Donaldson of Kingsbridge, who at that time said that we would study what the noble Viscount had said and reflect on the matter. That we have done.

The background to this amendment can, I hope, be stated fairly briefly. I believe it is common ground that this country has been afflicted since the end of the Second World War by one security scandal after another. Certainly other countries in the Western Alliance—the United States and West Germany—have both suffered major embarrassments in the same area, but none of our allies has experienced anything approaching the same number of damaging blows to its national security as the United Kingdom. I think it is right to give that background in order to explain the reasons that motivated Sir Edward Gardner in tabling this amendment in the other place. As the noble Viscount is aware, the amendment had all-party backing. Among its supporters were Mr. Callaghan and Mr. Merlyn Rees, both of whom, when Ministers, had direct responsibility for the security services.

We are, of course, well aware of the problems that gave rise to this amendment. I refer to the Channel 4 documentary relating to allegations made by Miss Massiter and another unnamed member of MI5. I should say immediately that I have no knowledge as to whether the allegations made in the programme were right or wrong. All I must say is that, in common with others, in watching the programme I found Miss Massiter to be a rather plausible witness. As the House will recall, despite the fears of the Independent Broadcasting Authority that, if transmitted, the programme would produce a situation in which the authority could find itself being proceeded against under Section 2 of the Official Secrets Act, the Attorney-General decided that he would not institute any proceedings.

I am bound to say that that surprised some of us more than a little because the same Attorney-General had decided that he would prosecute Mr. Clive Ponting despite the fact that counsel for the prosecution made it quite clear that no issues of national security were involved. On the other hand, in the Massiter case it was quite obvious that clear issues of national security were involved, including telephone intercepts. First, it was alleged that the definition of subversive conduct as given by me in this House in 1975—which, the House will recall, forms the basis of a certain instruction in the security service—was deliberately misused in order to enable telephone intercepts to be used against the Campaign for Nuclear Disarmament. Secondly, it was alleged that in breach of the guidelines given by the noble and learned Lord, Lord Kilmuir, when Home Secretary, Ministry of Defence officials obtained information from MI5 about the political beliefs of members of the executive committee of the Campaign for Nuclear Disarmament for use by Ministers for partisan political purposes.

5.15 p.m.

As I explained at Second Reading, I am in no way a friend of the Campaign for Nuclear Disarmament. Indeed, I have been, certainly among many others, one of its most dedicated opponents. However, I do not regard the organisation as subversive within either my definition given in 1975 or that given by the noble and learned Lord, Lord Denning, on another occasion. I am glad to see that the present Home Secretary, Mr. Britian, has said that he takes precisely the same view. Yet the allegation has been made that our security organisations have, in a deliberate manner, behaved as though the Campaign for Nuclear Disarmament were a subversive organisation. I think that that is an extremely serious charge; all the more so as the Campaign for Nuclear Disarmament's policy is, in many respects, almost identical to that of the Labour Party which is, of course, an alternative government of this country.

There is little point in arguing further in this House today about the truth or otherwise of what Miss Massiter said, but the fact is that it is believed by many people, including a large number who do not regard themselves as standing on the left of British politics. The charge that intelligence operations are being directed against people who are simply political opponents of the Government I believe justifies some measure of public concern.

It is at this point that Sir Edward Gardner's proposal requires the serious attention of the House, because what he suggested in the other place, as we do in the amendment now before us, was that there should be a complaints commissioner, completely independent of MI5 and MI6, who could be approached by members of either organisation if they believed that improprieties were taking place, and that the commissioner, if he felt the concern was justified, could then report to the matter to the appropriate Secretary of State.

I believe that this is a pretty modest proposal and, following the speech in Committee of my noble friend Lord Donaldson, the noble Viscount responded, as always, in a reasonable manner; though I fear to us not in an entirely satisfactory way. He produced two arguments and I shall try to summarise them as fairly as possible, but if I do not succeed no doubt the noble Viscount will put me right. First, he said, reported in col. 909 of the Official Report for 6th June 1985: Your Lordships will know that the new Director-General of the security service is examining the report of the Security Commission. He will make any necessary changes to improve the organisation and management of the service and will report to the responsible Ministers later in the year. His conclusions and the measures he has taken will be reported to the Security Commission for further comment. In this context, he has been asked to consider and report on what developments he proposes by way of internal outlets for the expression of grievances or anxieties by individual members".

I do not doubt, of course, that the Director-General has been asked to do precisely that, but if we do not take action on this matter today where will we be at the end of this year? We shall have no firm information before us as to whether any steps at all are to be taken. The only reason that we are able to discuss the matter today is that the Bill is going through Parliament. Once it is on the statute book we shall be in no position to know whether any significant improvements at all have been made.

We then come to the second leg of the noble Viscount's argument at column 908 of the Official Report, where he said: This Government are of the view that the present system of Ministerial accountability is right and works effectively. They are not of course alone in this view. The same opinion has been shared by successive Governments of both major parties over a very long period". Indeed it has. It was held very strongly by the Labour Party immediately after the war when we had the cases of the atom spies.

We had a similar view being taken after the defection of Burgess and Maclean. We had the same broad consensus among Ministers at the time of Philby, Blunt and Blake, when we found that one of our intelligence officers was working as a Soviet agent and had brought about the death of a number of our agents in Eastern Europe. We then had it at the time of the Prime case, when someone who had been a Soviet agent for 13 years, first in the RAF and secondly at GCHQ, was eventually convicted. Lastly and most recently, we had it at the time of the Bettaney case—the gentleman who offered his services to the Soviet Union as a spy. On each of those occasions we were told to leave it to the clear lines of accountability as far as Ministers were concerned, and all that we had on every single occasion were delay and cessation of any comment in the press until, of course, the next security scandal came along.

All I am saying to the House today is that we have an opportunity during the passage of the Bill to press the Government for the first time to give some indication that they are prepared to move into this new territory and in this particular direction which has been recommended by all parties in the House of Commons. I think it is highly desirable that they should do so. I think it would give members of both MI5 and MI6 some opportunity of going to someone in conditions of confidentiality if they believed that things were taking place which should not be taking place. On that basis, I beg to move.

Lord Campbell of Alloway

My Lords, my main reason for opposition to this amendment is that it does not go nearly far enough. It is far too modest. Although a complaints commissioner is needed, one is needed for the security services generally and not in the limited context of this Bill. In saying that, I expressly refrain from associating myself in any way with any hint of criticism of the way in which my right honourable and learned friend the Attorney-General has discharged his duty, or indeed from associating myself with any particular criticism or any charge that has been made in your Lordships' House today. The question is one of principle and of greater importance than any particular case.

I have received the communication from my honourable friend Sir Edward Gardner, who seeks support for this clause on the ground that our security services have yet to solve the serious problem of investigation of complaints without breach of security. It is plain that some independent complaints commissioner ought to be set up within the security of the Secret Service, as indeed he suggests in his communication. But to bring that into an Interception of Communications Bill, which according to the Long Title is concerned only with the interception of communications and amendment of Section 45 of the Telecommunications Act, is, with respect, to accord scant justice to the importance of the subject of independent investigation of the security services generally. It is, as I see it—and I speak only personally—too limited, and it is for that reason that I oppose the amendment.

Lord Denning

My Lords, I have every sympathy with the suggestion but I also have sympathy with the views expressed by my noble friend Lord Campbell of Alloway. Is this to extend not only to the security services but to the Army, the Navy and the Ministry of Defence, when one civil servant or one member of the services complains against a fellow? Surely the proper course—and I hope that it is done throughout the services—is to complain right up to the Secretary of State, the Minister or whoever it may be. It would be an entirely new departure to have an ombudsman, so to speak, in that regard. I doubt whether it should be introduced just in this one sphere. If it is to be done it should be done throughout the services. I am afraid that in those circumstances I do not support the amendment.

Lord Mishcon

My Lords, it may be convenient if I intervene briefly at this stage in support, let me say at once, of the amendment which has been so effectively moved by the noble Lord, Lord Harris of Greenwich. If I may respectfully say so, it is no answer ever in Parliament to say that there is a need covering a wider area and therefore we should not introduce the provision into a narrower area. If we went on like that we should never have any reforms at all. If it were deemed sensible to set up a commissioner with those powers and duties now under this Bill, I have no doubt that, having done that, he would then be available to deal with the larger area so properly suggested by the noble Lord, Lord Campbell of Alloway. I have no doubt that that would immediately become a matter which we could discuss and with which the Government could deal.

I remember so well the Lindop Committee reporting in December 1978, and it is now 1985. So often we ignore the recommendations of our commissions and committees. I can remember the noble and learned Lord, Lord Gardiner, whose presence in this Chamber we so often miss, lamenting time and time again that busy, public-minded people have sat on various commissions and committees and made recommendations after a lot of deliberation, and that their recommendations have been lost in the waste-paper baskets—I suppose it is more polite to talk of pigeon-holes of various departments. This is what the Lindop Commitee said in 1978 at paragraphs 23.20 and 23. 21: But the proper discharge of the duties of the security services entails a dilemma. If the job is to be done properly it must necessarily be done in secret. If that is so, it can never come under public scrutiny. Indeed, it is a long-established parliamentary convention that any question addressed to a Minister in that area is fielded with a refusal to give any information in the interests of national security. This leaves the security services in a hermetic compartment where they can never discuss their problems with anyone outside their own tight community. Thus they are not open to the healthy and often constructive criticism and debate which assures for many other public servants that they will not stray beyond their allotted functions". This Bill. I would have said, deals more with the interception of communication in relation to national security than any other department that we have dealt with, and we all know it. Therefore, if we do not move in this connection in regard to national security and set up the commissioner's position with these powers and duties under this Bill, we shall not have taken an opportunity readily given to us of supplying a need on which, though I entirely agree that it ought properly in future to cover a wider area, we ought to make a start.

5.30 p.m.

Viscount Whitelaw

My Lords, I accept at once that this clause moved by the noble Lord, Lord Harris, is important and has considerable support in different parts of and different parties in another place. I also accept that I have put forward some answers on the previous occasion and I think I can go some way further on this occasion than I was able to do on the last one.

The heart of the new clause is the management of the security service. I must repeat to your Lordships that there is always a danger—and this clause no doubt runs it—of cutting across direct, proper managerial responsibility. I am not saying that that may not have to be done, but that risk of course is there. It is the job of the Director-General of the security service to instruct his staff in carrying out their functions and to give all the necessary support and guidance. This naturally includes clear instruction on the security service directive and its day-to-day implementation. In this area the Director-General and his senior colleagues are in no different position from senior management in any organisation, apart from the fact of the very special nature of their duties. It is a significant part of their task to listen sympathetically to concerns brought forward responsibly by any member of the staff. It is the responsibility of the Home Secretary, in his turn, to ensure that in this respect, as in all others, the management of the security service is operating properly. It is a very difficult task for any Home Secretary to carry out, and I freely admit that.

My right honourable friend the Prime Minister said in her statement that the Government appreciated the concern which had been expressed about the handling of members of the service who were troubled over particular matters. A view was most certainly expressed, as the noble Lord, Lord Harris, said, and the Government immediately took proper note of it. As was made clear in my right honourable friend's statement, the new Director-General, very recently appointed, is examining the report of the Security Commission. He will make any necessary changes to improve the organisation and management of the service and will report to responsible Ministers later in the year. The Security Commission will then be invited to consider his conclusions and the measures he had taken. He has also—and this is a crucial consideration so far as this new clause is concerned—been asked to consider and to report on what developments he proposes by way of internal outlets for the expression of grievances or anxieties by individual members of the service.

The matter with which this new clause is concerned is accordingly under his examination. I am sure the House will agree that this examiniation must be careful and must be detailed and it would be wrong to rush quickly into changes before the Director-General had had the opportunity to consider the whole position of his management within the service. I accept at once what the noble Lord, Lord Harris, and what the noble Lord, Lord Mishcon, said—that that may all be very well but in this case there is a Bill, certainly dealing with interception of communications, but which, though it is very far from the whole story of the management concerned and affects only one part of it, nevertheless provides an opportunity. However, there is more to the matter than that and I hope to be able to satisfy your Lordships as to why there is no need to rush it.

There is nothing intrinsically statutory about the post of a complaints commissioner. Such a complaints commissioner can be appointed without being included in this Bill. It is essentially an in-house matter and I must emphasise to your Lordships that legislation is simply not needed to deal with the appointment of a complaints commissioner. That is a fact of life. There is therefore no question this afternoon of an opportunity being lost if the Bill proceeds without the new clause. For that reason, I urge your Lordships not to think that this is a situation of now or never. If it were, I should have very considerable sympathy with many of the views put forward by your Lordships this afternoon. But it is not so and there is an opportunity to allow the Director-General to have the chance to consider his management and to report to the Security Commission as has been agreed.

There is a further element to the statutory basis of the complaints commissioner to which I have already referred. That is that this Bill deals with the interception of communications. Despite what the noble Lord, Lord Mishcon, and others have said about making a start, it surely would be wrong to have a complaints commissioner in a post which was part statutory under this Bill and part non-statutory if he was appointed for the whole of the service. Surely having him in these two different positions would not be a sound basis. I should put that also to your Lordships.

I therefore feel that because legislation is in no way necessary to appoint a complaints commissioner, it would be right to wait until the Director-General of the security service has indeed had the chance to examine all these matters in good time. Therefore, far from the clause being brushed aside, it is being thoroughly examined. I equally suggest that, if action had to be taken in this Bill or not at all, there would be a sound case for what the noble Lord has proposed. As I have set out that that is not the case, I suggest that it is right not to put this new clause into the Bill.

Lord Harris of Greenwich

My Lords, I shall respond briefly, first to the noble Lord, Lord Campbell of Alloway. I think the point he made was answered extremely effectively, if I may say so, by the noble Lord, Lord Mishcon. It really is not an objection to say, as he did, that he would like something far more substantial than is proposed in this amendment and to give that as a reason for opposing progress in a more limited area.

Secondly, so far as the noble and learned Lord, Lord Denning, is concerned, all I would say is this. With the greatest respect to him, there is absolutely not the slightest analogy between the security organisation and the Army, the Navy and the Air Force. That is for what I should have thought were two very obvious reasons. First of all, Ministers are directly accountable in both Houses of Parliament for the activities of the Army, Navy and Air Force. Questions are constantly asked in both Houses of Parliament about what the Army, Navy and Air Force do. Therefore, in the most direct way, Ministers are brought to book if errors of judgment are committed.

In so far as the security service and MI6 are concerned, quite different issues apply. If Questions are put down, one is told that it is not in the interests of national security to answer. Secondly, there is a Select Committee in another place so far as defence is concerned and again that gives them the opportunity to assess the conduct of Ministers. That is why, as I think the noble and learned Lord may to some extent recognise now, there is no comparison at all between these two issues.

Perhaps I may now turn to what the noble Viscount has said. I take the point that he has made: it would perhaps be to some extent untidy to have a complaints commissioner whose duties were part statutory and part non-statutory. Yes, it would be rather untidy. However, I think we could live with that. With respect to the noble Viscount, I do not regard that as a decisive argument. If he had today indicated that the Government were prepared, and made a firm commitment that they were prepared, to think seriously of having some form of independent complaints commissioner in the security services, I think he would have persuaded all of us and we should have been very happy to have withdrawn this amendment and allowed the Government to come forward with firm proposals at a later stage.

However, I am bound to tell the noble Viscount that we are not persuaded by the argument he has put to us. I do not want to rehearse the argument yet again. We have had a situation of substantial crises in the security services of this country. Here is a limited proposal to deal with part of that problem. Quite bluntly, I think we should not be discharging our responsibility to Parliament if we simply withdrew this proposal today. The Government will no doubt secure their majority, but they themselves will have to carry the most direct responsibility for any further problems of the kind that were raised over the Massiter case.

5.40 p.m.

On Question, Whether the said Amendment (No. 14) shall be agreed to?

Their Lordships divided: Contents, 69; Not-Contents, 94.

DIVISION NO. 3
CONTENTS
Airedale, L.	Howie of Troon, L.
Ardwick, L.	Ilchester, E.
Attlee, E.	Jeger, B.
Aylestone, L.	Jenkins of Putney, L.
Banks, L.	Kilmarnock, L.
Beaumont of Whitley, L.	Kirkhill, L.
Birk, B.	Leatherland, L.
Blyton, L.	Listowel, E.
Brockway, L.	Llewelyn-Davies of Hastoe, B
Brooks of Tremorfa, L.	Lloyd of Kilgerran, L.
Bruce of Donington, L.	Lockwood, B.
Caradon, L.	Longford, E.
Carmichael of Kelvingrove, L.	Mclntosh of Haringey, L.
Cledwyn of Penrhos, L.	McNair, L.
Collison, L.	Mishcon, L.
David, B.	Molloy, L.
Davies of Leek, L.	Morton of Shuna, L.
Davies of Penrhys, L.	Mountevans, L.
Dean of Beswick, L.	Nicol, B.
Diamond, L.	Oram, L.
Elwyn-Jones, L.	Pitt of Hampstead, L.
Elystan-Morgan, L.	Ponsonby of Shulbrede, L.
Ennals, L.	Roberthall, L.
Ewart-Biggs, B.	Russell of Liverpool, L.
Fisher of Rednal, B.	Shepherd, L.
Foot, L. [Teller.]	Stallard, L.
Gallacher, L.	Stewart of Fulham, L.
Gladwyn, L.	Stoddart of Swindon, L.
Graham of Edmonton, L.	Strabolgi, L.
Grey, E.	Taylor of Blackburn, L.
Harris of Greenwich, L. [Teller.]	Taylor of Mansfield, L.
	Turner of Camden, B.
Hatch of Lusby, L.	Wallace of Coslany, L.
Hooson, L.	Wigoder, L.
Houghton of Sowerby, L.	Wilson of Langside, L.

NOT-CONTENTS
Airey of Abingdon, B.	Dilhome, V.
Alexander of Tunis, E.	Drumalbyn, L.
Auckland, L.	Dundonald, E.
Belhaven and Stenton, L.	Elton, L.
Beloff, L.	Fanshawe of Richmond, L.
Belstead, L.	Fortescue, E.
Boyd-Carpenter, L.	Fraser of Kilmorack, L.
Brabazon of Tara, L.	Gainford, L.
Brougham and Vaux, L.	Gardner of Parkes, B.
Bruce-Gardyne, L.	Glenarthur, L.
Cairns, E.	Gray of Contin, L.
Caithness, E.	Greenway, L.
Cameron of Lochbroom, L.	Hailsham of Saint Marylebone, L.
Campbell of Alloway, L.
Camegy of Lour, B.	Halsbury, E.
Cayzer, L.	Harmar-Nicholls, L.
Coleraine, L.	Hayter, L.
Colwyn, L.	Hemphill, L.
Cottesloe, L.	Holderness, L.
Cox, B.	Hooper, B.
Craigavon, V.	Hylton-Foster, B.
Cullen of Ashbourne, L.	Kaberry of Adel, L.
Davidson, V.	Killearn, L.
De La Warr, E.	Kilmany, L.
Denham, L. [Teller.]	Kimball, L.
Denning, L.	Lane-Fox, B.

Long, V. [Teller.]	St. Aldwyn, E.
Lucas of Chilworth, L.	St. Davids, V.
Lyell, L.	Sandford, L.
Marley, L.	Shannon, E.
Marshall of Leeds, L.	Sharpies, B.
Maude of Stratford-upon-Avon, L.	Skelmersdale, L.
	Somers, L.
Merrivale, L.	Stamp, L.
Mersey, V.	Sudeley, L.
Mlilverton, L.	Swinfen, L.
Mottistone, L.	Teynham, L.
Mlurton of Lindisfame, L.	Thorneycroft, L.
Nugent of Guildford, L.	Tranmire, L.
Orkney, E.	Trefgarne, L.
Orr-Ewing, L.	Trumpington, B.
Pender, L.	Vaux of Harrowden, L.
Peyton of Yeovil, L.	Vivian, L.
Portland, D.	Whitelaw, V.
Rankeillour, L.	Wise, L.
Rawlinson of Ewell, L.	Wynford, L.
Renwick, L.	Young, B.
Rodney, L.	Zouche of Haryngworth, L.

Resolved in the negative, and amendment disagreed to accordingly.

5.48 p.m.

Clause 9 [Exclusion of evidence]:

Lord Mishcon moved Amendment No. 15: Page 8, line 30, after ("shall") insert ("except as authorised by direction given in pursuance of subsection (1B) below").

The noble Lord said: My Lords, if I may, I shall speak also to Amendment No. 17, and do so briefly. Amendment No. 17: Page 8, line 35, at end insert— ("(1B) A direction as mentioned in subsection (1) above may be given by a court or tribunal if that court or tribunal is satisfied whether on application or otherwise that a failure to give such a direction would seriously prejudice the rights of one or more of the parties to the proceedings before it.").

At Committee stage, I ventured to raise the problem that unless the court or tribunal were given some discretion in regard to the prohibition of evidence being given in relation to an offence under Section 1—I am using shorthand English on purpose but I think that what I have said is an accurate description of what will be the position—injustice might well be done. I cited an example, but I was not original in this. I was quoting from Mr. Douglas Hogg, when this Bill was being debated in another place, the instance of an industrial tribunal where the Post Office had decided to dismiss an employee because he had breached Section 1. If one literally followed the words of this Bill it would mean that in a case of unfair dismissal before the tribunal no evidence of the reason as to why the employee had been dismissed could be given. That was but one instance.

However, the noble Viscount very kindly said that he would take up this matter, and he has done so. Therefore, I believe that to take the matter any further in regard to the court or tribunal having discretion would not be profitable. I say frankly that I am moved, as your Lordships will be moved, by a contribution to the debate on this very matter by the noble and learned Lord, Lord Denning, when he first expressed sympathy with my amendment and then said that, on reflection, he felt that the courts should know where they stood, that in fact no discretion should be granted, and that Parliament should speak with a firm voice.

The point on the tribunal has been conceded, and I have no doubt that the noble Viscount will deal with it when he replies to what I have just said. Although I should still like to see a general discretion granted, in the circumstances I do not think that I am likely to get your Lordships to agree and, therefore, I shall have to be content with a partial victory, joined by the honourable Member Mr. Douglas Hogg, whose name I have already mentioned. I beg to move.

Viscount Whitelaw

My Lords, I am grateful to the noble Lord, Lord Mishcon. In view of what the noble Lord has said, it may be for the convenience of your Lordships, as we are dealing with Amendments Nos. 15 and 17, if I also refer to Amendments Nos. 18 and 19, which I shall move. I believe that that is what the noble Lord, Lord Mishcon, was suggesting. Amendment No. 18: Page 9, line 1, after ("apply") insert ("—(a)"). Amendment No. 19: Page 9, line 3, at end insert ("or (b) where the evidence is adduced or the question in cross-examination is asked for the purpose of establishing the fairness or unfairness of a dismissal on grounds of an offence under section I above or of conduct from which such an offence might be inferred; and paragraph (a) of that subsection does not apply where a person has been convicted of the offence under that section."). As the noble Lord has said, at the Committee stage we had a discussion on this matter and the noble Lord has referred to what was said then by the noble and learned Lord, Lord Denning, and to what was generally discussed. Therefore, on the general principle the noble Lord has not sought to continue with his argument.

Perhaps I should respond briefly by saying that, of course, throughout the problem here secrecy is the starting point. It is essential that legal proceedings cannot be used by ingenious and unscrupulous people as a means of discovering whether warrants have been directed against them or perhaps the grounds on which warrants might have been issued. This is absolutely vital if authorised interception is to remain the effective instrument it has long been. I know that the noble Lord supported that general principle, and, following the arguments in Committee, I think he now accepts that, on the whole, that general principle was the wish of the Committee on that occasion.

I have to state quite firmly that the amendments which the noble Lord has put forward—and I think that the noble Lord now accepts this—might, or probably would, allow a loophole which could and, knowing some of the people who are involved, no doubt would be exploited. For that reason I am grateful to the noble Lord in relation to the general point that he will not press it.

I think that I should also make one further point to the noble Lord which I hope will be helpful. The noble Lord referred to the fact that Clause 9 as it stood would have stopped the Malone case. It is undoubtedly right that it would stop proceedings of that kind; but the point is that the courts then offered no remedy and that the tribunal has been established precisely to give one. Any person can apply without test of any kind. If there has been a contravention then the tribunal will say so. Thus, any future Malone would, through the tribunal, have what the real Malone could never have had: certain access to a powerful remedy. Of course, thereafter anyone pursuing a case can do so in Strasbourg if he wishes to. Therefore, I am grateful to the noble Lord, Lord Mishcon, for accepting that, in the final event, secrecy has to take a great deal of the argument, because if we do not have that we could find ourselves in very great difficulty.

As for Amendments Nos. 18 and 19, these follow the undertaking that I gave the noble Lord, Lord Mishcon, in Committee and, as he has suggested, I think that I should reply briefly on the particular point that he has made. The noble Lord told us that the Post Office or a public telecommunications operator, to both of whom the general prohibition in Clause 9 applies, as it does to those holding office under the Crown, might have felt obliged to dismiss an employee for doing something which amounted to a breach of the offence of unlawful interception. If that person then brought a case for unfair dismissal before the industrial tribunal the organisation would not be allowed, if I may paraphrase the words of the clause, to adduce evidence which tended to suggest the offence had been committed by that person who, at the material time, would have been an employee. I said in Committee that the Government found the noble Lord's argument on this point persuasive.

The effect of these amendments is two-fold. First, it adds a general exception to the clause allowing questions to be asked or evidence adduced if that is for the purpose of establishing the fairness or unfairness of someone's dismissal. Your Lordships will note that the amendment is not confined to circumstances where the action in question was an offence but covers also the circumstance where it was such that an offence might be inferred. This would meet the situation where the grounds for the dismissal had been, for example, doing things which appeared to be preparatory to an interception but where the interception itself had not been achieved. This is necessary because of the way in which the clause rests on the notion of tending to suggest the commission of the offence or the issue of a warrant. Your Lordships will also see that there is no reference to industrial tribunals. This is primarily because there could be other kinds of proceedings in which the fairness of someone's dismissal was at issue; for example, if the finding of an industrial tribunal was taken on appeal to the courts.

The second element in the amendment could be relevant in cases to do with a dismissal. It creates an exception for references to the fact of somebody's previous conviction for the offence of unlawful interception, and it could be of course that the dismissal was strictly on the grounds of that conviction rather than because of the conduct as such. This limb, however, goes wider and creates an exception for any circumstance where there has been a conviction. Such a conviction will of course be a matter of public record, and this element therefore clears up any doubt there might be about that aspect.

I am grateful to the noble Lord, Lord Mishcon, for what he has said. I hope that the Government's amendments meet the point that he has made, and I am very grateful to him for, once again, having suggested these proposals to the House.

Lord Mishcon

My Lords, it merely remains for me, having regard to what I said, to ask the permission of the House to withdraw Amendment No.15.

Amendment, by leave, withdrawn.

Lord Mishcon moved Amendment No. 16:

Page 8, line 35, at end insert— (" (1A) Subsection (1) above shall not apply on an application to the High Court for judical review of a decision by the Secretary of State to issue a warrant if the Court is satisfied that there are exceptional circumstances which, in the interests of justice, would make an investigation by the Tribunal inappropriate.").

The noble Lord said: My Lords, I hope that we have conducted all our deliberations in regard to this Bill as succinctly as possible. I propose to follow that precedent in regard to Amendment No. 16. It is a very serious matter indeed when the courts of our country are ousted from jurisdiction. There may be good reasons for doing so, but where we do so it is my respectful submission that we ought to say so on the face of the statute. Although there is an ouster provision in regard to anything done by the tribunal under this Bill in regard to its decisions—a matter to which the noble Lord, Lord Campbell of Alloway, drew attention in a previous speech on this stage of the Bill—there is no specific provision that the jurisdiction of our courts is to be ousted in regard to matters of judicial review.

There is an indirect way of saying it because in Clause 9 of the Bill it says that evidence upon all matters that would be relevant to an application for judicial review is barred, and therefore the court cannot hear any such evidence or have any such evidence adduced before it. That may be an indirect way of saying that, for practical purposes, ouster has taken place under the provisions of this Bill.

6 p.m.

The first point I make is that the Government have to come out with a clear, loud voice and say, "Yes, it is the intention to oust completely the jurisdiction of the courts". I believe, although this is not positively stated in my amendment, that if that is the attitude of the Government, then, frankly, by Third Reading there ought to be a provision which says so.

If that is not the attitude of the Government, and there are some circumstances in which the Government really want to retain the jurisdiction of the courts, my amendment is necessary because it gives such jurisdiction in exceptional cases. The exceptional circumstances would have to be determined by the court as being exceptional on the basis that the tribunal was not the appropriate body to consider the grievance of the applicant who had come before the court instead of the tribunal.

Your Lordships may well say, "Well, give an example of the sort of case you have in mind. We cannot conceive of a case where it would be inappropriate for the tribunal to hear the matter, secret of course as the tribunal proceedings are, and where a court would decide in exceptional circumstances that this ought to be brought out in the open and that it ought to be dealt with by way of an application for judicial review".

I give the following example, and I know that your Lordships will regard it as something that is possibly highly imaginative and is not likely to take place with any Secretary of State with whom your Lordshps may have acquaintance. I ask your Lordships in the circumstances to say that one is entitled to be imaginative when one is legislating, and one is entitled to assume that there are Secretaries of State who may not be similar to the ones of whom we have personal knowledge. I cite this case. There is a Secretary of State, of whatever political colour, who has had a confession made to him and a confidence placed in him by a Member of Parliament of his own political party. It is that a scandal is likely to break out in that Member's constituency, and that he is extremely anxious to know how far news of a certain relationship that that Member has is being discussed in the constituency.

He tells the Secretary of State that he has reason to believe that Mr. A is planning with Mr. B a public pronouncement as to the sexual indiscretions of the Member of Parliament involved. Absolutely wrongly the Secretary of State, in my scenario, issues a warrant that conversations between A and B are to be intercepted. It is obviously, under the Bill, a completely wrongful use of the Secretary of State's power.

It would be quite inappropriate, I should have thought any court in the land would decide, for that matter to be dealt with by way of a private complaint. I say private complaint to a tribunal because of course the tribunal's proceedings would all be in secret. The court might hold that this is such a bad case that this is the sort of matter which ought to come out in public, ought to be dealt with by way of judicial review, and that the courts ought to look into a scandal of that kind—as undoubtedly it would be—if those facts are brought before the court and the court is satisfied that there is a prima facie case that this really is happening, or has happened. Indeed, your Lordships may think that in some case such as this the power of an injunction by the courts might be an appropriate remedy, let alone a judicial review.

Therefore I come back to where I started, and then I propose to sit down. I ask the Government: is it intended, without any exception at all, to oust the jurisdiction of the courts on matters relating to this Bill where there is a complaint by a member of the public where a warrant has been issued? I say to the Government that if that is their intention and there are to be no exceptions to that rule, the Bill ought to say in clear terms that the courts are ousted in regard to decisions of the tribunal. If the Government say, "No, we want to let the loophole exist. There might be the very exceptional case where the tribunal is not the appropriate body and where the courts ought to have some jurisdiction", then my amendment is necessary, and I move it.

Lord Campbell of Alloway

My Lords, the amendment is moved only, as I understand it, upon a hypothesis. That is the hypothesis that there is no ouster clause. But as I understand it, I think this was the error that I previously confessed. There is an ouster clause in Clause 9. There ought to be an ouster clause. True, it is a serious matter; true, the ouster clause is not in the traditional form with which we are accustomed in United Kingdom or Commonwealth legislation. But as I understand it Clause 9 is an effective ouster clause, for if it were not and there were loopholes, this could well tend to put the interests of state security at hazard; interests which ought to prevail in any conflict between such interests and those of the individual in this particular circumstance of national security.

Having listened to the debate in your Lordships' House today, I believe that the only conceivable loophole could arise in context not with the decision of the tribunal but with objection that was taken to the conduct of the proceedings before it, which in fact could relate to rules of procedure or rules of guidance. I in fact referred your Lordships to this possibility. However, my noble friend the Leader of the House indicated that some consideration would be given to these matters, and no doubt when he replies this will receive attention.

Lord Denning

My Lords, I hope that your Lordships will not accept this amendment. I agree entirely that the jurisdiction of the High Court should never be excluded, even by Parliament itself, and ousted altogether. The jurisdiction of the High Court to control Secretaries of State, or anyone such as that, should be maintained. In this particular case if an application were made to the High Court to review the decision of the Secretary of State, it would certainly get nowhere. That is not only for the reason that they could not get in any evidence, but also because reading through the statute it is plain that the object of Parliament is that if there is to be any investigation whatsoever as to whether or not the Act has been complied with, it has to go before the tribunal.

It is the tribunal which is given exclusive jurisdiction over all these matters. Then when it goes to the tribunal there is the important Clause 7(8): The decisions of the Tribunal (including any decisions as to their jurisdiction) shall not be subject to appeal or liable to be questioned in any court". I have never seen such a provision as that in any statute. It is the most effective one to deprive the High Court from reviewing the decisions of the tribunal because it says, including any decisions as to their jurisdiction". That excludes altogether the tribunal's decisions being questioned at all. It is that clause which, in effect, gives exclusive jurisdiction in practice, together with the exclusion of any evidence which is given by Clause 9. In other words, if anyone sought to go to the High Court for a judicial review of the decision of the Secretary of State, he would get nowhere unless there was the most exceptional case which I cannot think of. But I would leave it open for the High Court eventually to decide whether there was a case or not. I should have thought that no ordinary applicant would ever get anywhere in view of the statute as it is and I would leave the Bill as it is without this amendment.

Viscount Whitelaw

My Lords, the noble and learned Lord, Lord Denning, has stated far more clearly than I could what I intend to say in answer to the noble Lord, Lord Mishcon. We have discussed the purpose of Clause 9, the tribunal's position and all the time the question of secrecy, which is so vitally important under the whole of this Bill and which concerns the purpose of the Bill.

The noble Lord questioned the declared objective of giving the tribunal exclusive jurisdiction to review the decision of the Secretary of State and questioned whether the provision did so. It is true that it does not contain a traditional ouster clause. This is because, as the noble and learned Lord, Lord Denning, has made clear, the Government believe that Clause 9 has the desired effect and it is right in a Bill of limited ambit such as this to confine the restriction to what really matters: information about warrants and so on. Clause 9 is addressed to this and to no more. It refrains from making any general declaration on the jurisdiction of the courts, but deals in one provision not only with the judicial review of ministerial decisions but also, for example, with criminal trials when a police witness might be forced to reveal information to which he is privy. I think I have made this clear. The noble Lord, Lord Mishcon, asked for a clear answer. I think he has had the clearest answer I can give him as to the purpose set out in the Bill.

Lord Mishcon

My Lords, I appreciate the fact that the noble Viscount has endeavoured to deal with the question I put to him. I am afraid I am left in a state of mental limbo. I am in that state not only because of what the noble Viscount has said, but also because of what the noble and learned Lord, Lord Denning, has said. The noble and learned Lord knows I put this to him with the utmost respect and diffidence. I thought he commenced his speech by saying that there was not the slightest doubt that the courts had been completely ousted and it would be wrong for them not to be. At the end of his speech I thought he was envisaging the possibility of a case where that might not be so, where the courts might have jurisdiction by way of judicial review, though at the moment he could not think of such a case. With some imagination I ventured to mention such a case which in my view would be unsuitable for a tribunal to decide. I should have thought that our courts would have so felt.

With regard to the comments of the noble Viscount, again, I am left in a little doubt. Does he agree with the noble and learned Lord, Lord Denning, that there could be an exceptional case—I underline the word "exceptional"—where our courts would feel that it was proper for them, not a tribunal, to deal with the matter? If the noble Viscount is in agreement with the noble and learned Lord, Lord Denning, that there could be an exceptional case—I again underline the word "exceptional" as many times as anyone would want me to—surely there ought to be a provision in this Bill in accordance with my amendment.

I realise that there are matters of deep thought, deep philosophy and possibly technical law involved in what I and other participants in this debate have been saying. Although I appreciate that Report stage is a very late stage in the Bill, as I have said before, I have the idea that it might be better if the noble Viscount in his great courtesy would consider what has been said by the noble and learned Lord, Lord Denning, by the noble Lord, Lord Campbell of Alloway, and by myself and, possibly by means of communication between all parties between now and Third Reading, we may decide whether or not we have a problem. If we have a problem, I shall put down the amendment again, and if we do not have a problem, I shall be delighted not to have to trouble the House further. However, I believe that the noble Viscount might agree that because matters have been raised today which are highly technical and sensitive this might be the best way of dealing with the matter. If he agrees, I shall ask leave of the House to take a certain course.

Viscount Whitelaw

My Lords, with the leave of the House, it is clear to me that a layman, however well briefed, comes to the moment when, dealing with three of the most eminent legal brains of different capacities in this country, he must say, "Let me see". That is what I say to the noble Lord. I must do so without any commitment. The noble Lord has been very gracious. He has offered the same position back. I shall consult those most closely concerned and will return to the noble Lord and other noble Lords and seek before Third Reading to put the matter beyond any doubt, if I can. That would seem to be the proper course. The noble Lord has given me that opportunity and I am extremely grateful to him.

Lord Mishcon

My Lords, I am perfectly happy with those comments and I ask leave of the House to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendment No. 17 moved.]

6.15 p.m.

Viscount Whitelaw moved Amendment No. 18:

[Printed earlier.]

On Question, amendment agreed to.

Viscount Whitelaw moved Amendment No. 19:

[Printed earlier.]

On Question, amendment agreed to.

Schedule 1 [The Tribunal]:

Viscount Whitelaw moved Amendment No. 20: Page 12, leave out lines 28 to 38 and insert—

("Procedure of Tribunal

3. The functions of the Tribunal in relation to any application made to them shall be capable of being carried out, in any place in the United Kingdom, by any two or more members of the Tribunal designated for the purpose by their President; and different members of the Tribunal may carry out functions in relation to different applications at the same time.")

The noble Viscount said: My Lords, I do not think I need detain your Lordships long in moving this amendment. Its purpose is to introduce a quorum for the tribunal. In the process paragraph 3 of Schedule 1 has been recast but the adjustments are essentially consequential and do not in any substance change the other provisions of paragraph 3 in its present form.

The noble Lord, Lord Mishcon, in Committee moved an amendment to require a quorum of three. He emphasised the importance of the decisions taken by the tribunal and the point that people should not think that they could be taken simply by one person without any form of consultation. The noble Lord also acknowledged that among the things that the tribunal had to do were matters of differing importance. For example, the review of a warrant issued by the Secretary of State was of a very different order from a decision to treat as frivolous or vexatious an application from somebody, perhaps a person of unsound mind, who had made a large number of similar applications.

I drew your Lordships' attention to the fact that the existing provision allowed the president of the tribunal to determine how many of its members would consider any particular case, and the noble and learned Lord, Lord Denning, emphasised the same point. I do not believe that in practice any major decision would be taken other than by all the available members and there is much to be said for giving a sensible degree of flexibility to the tribunal, which it must be assumed will act responsibly over its procedures as in every other way. Indeed, I do not think that the noble Lord, Lord Mishcon, believed the Government had intended to do other than provide flexibility in framing the paragraph as it now stands. I undertook, however, to bring forward an amendment introducing a quorum because I recognised the force of the noble Lord's view that the wrong impression could be created by a reference to one member being able to carry out the functions of the tribunal as a whole.

Under this amendment the functions of the tribunal can be carried out by two or more of its members. Having considered the noble Lord's arguments very carefully, the Government believe that this is the right approach. The important point is that the functions can be carried out only by two or more. The effect is to require a quorum of three in the event of any disagreement, since no decision would be a decision of the tribunal unless at least two supported it. A straightforward requirement for a quorum of three would thus be very little different when it came to what really mattered, the decisions, since, for a quorum of three, two could take the decision. This approach, however, has the advantage of allowing two members to deal with business in relatively routine cases such as the frivolous applications. The Government believe that this is right and that to require three people, as distinguished as members of the tribunal will be, to deal with all such cases would be going too far.

I would remind your Lordships that the requirement remains whereby the president must designate which of the members carry out the tribunal's functions. He is not limited to two, and I have not the slightest doubt that he would generally convene all the available members where decisions of the Secretary of State had to be reviewed. I hope that in these circumstances the noble Lord, Lord Mishcon, will feel that this amendment is a proper response to his concern. The Government believe that this is an improvement for which, again, I give full acknowledgement to the noble Lord. On the basis that this amendment gets the balance right, I commend it to your Lordships and thank the noble Lord for his contribution to its introduction into the Bill. I beg to move.

Lord Mishcon

My Lords, I am grateful to the noble Viscount for his gracious comments, and in the words that were always used by judges of appeal when they sat with Lord Justice Denning, "I have nothing to add".

On Question, amendment agreed to.