HL Deb 09 July 1985 vol 466 cc138-45

3.27 p.m.

Viscount Whitelaw

My Lord, I beg to move that this Bill be now read a third time.

When introducing the debate on the Second Reading of this Bill in May, I referred to the part that your Lordships' House had played in its generation. Now, virtually eight weeks later, I am pleased to be able to point to the part that the House has played in securing changes to it. In a number of important respects the Bill will return to another place the better for its examination by your Lordships.

Discussion in the past few weeks has, I believe, taken full account of two considerations which underpin the Bill and therefore of the balance which the statutory scheme must maintain. One is the importance of interception in the fight against serious crime and drugs running, and in safegurding the nations' security and wellbeing. The other is its intrinsic undesirability save in appropriate and carefully controlled circumstances.

I have been at pains to emphasise during our proceedings that the Government did not seek through this legislation to change the long-standing practices in this area, which have been followed by successive governments of both major parties. In that sense, the situation is one of no change, and I am glad of this final opportunity to repeat the point. But in other respects the Bill which I invite your Lordships to return to another place represents a very important development. It establishes a comprehensive legal framework where the existing statutory provision is at best piecemeal.

More particularly, it creates a new general offence of unlawful interception, and sets up a means of redress and other safeguards where at present the law is silent. The importance of this should not be underestimated. For all these reasons, the Government believe that the Bill fully meets the United Kingdom's obligations under the European Convention on Human Rights. The measure is one which the Government also believe will stand the test of time and will provide the basis for authorised interception and for the protection of the individual from improper interference in his communications for a long time into the future. It will be able to do so because it is clear and comprehensive.

I shall not detail all the changes which have been made during the Bill's passage. Suffice it to say that all its major parts have been scrutinised carefully, some more than once, and it leaves your Lordships' House with a number of valuable amendments. This scrutiny of the Bill has, if I may say so, been without rancour, and with the common objective on all sides of ensuring that it is as good as it can be.

In closing these brief remarks, I should like to express my thanks to all noble Lords who have joined in proceedings on the Bill. I believe that your Lordships have been particularly fortunate to have had the benefit of the views of the noble and learned Lord, Lord Denning, who has brought a wealth of experience and understanding to our exchanges. The noble Lords, Lord Campbell of Alloway, and Lord Foot, too, have made very valuable contributions. I must also take this occasion to refer again to the considerable contribution made by the noble Lord, Lord Mishcon, which has, I believe, enabled us to make a number of very worthwhile changes. I hope that noble Lords concerned will not mind if I invite them, as I invite others, to join me now that things have reached this stage in hoping that the Bill has a smooth passage from this point onto the statute book. My Lords, I commend the Bill to the House.

Moved, That the Bill be now read a third time.—(Viscount Whitelaw.)

3.30 p.m.

Lord Mishcon

My Lords, I am so glad that the noble Viscount, with his usual courtesy, has paid tribute to this House for the consideration which it gave to this important Bill. It was the hope in another place that we would give consideration to various parts of the Bill, and indeed it was appropriate that we should do so, because, as the noble Viscount hinted, the Bill was conceived in this House and was given a rather hurried birth as a result of the decision in the Malone case in the European Court of Human Rights. So, as I ventured to say at Second Reading, we had, as it were, the role of parents to play in seeing that the child that reached us went back to another place in a better condition than when it came to us. I think that broadly we have done that.

I know that the noble Viscount will forgive me if I mention a few of the matters that cause me some regret about the Bill. I make no complaint in regard to the way in which he received the arguments, or the way in which they have subsequently been dealt with, but I merely feel that I ought to put on record some misgivings. The first misgiving I have is that the opportunity was not taken, as was advocated in the Philips Royal Commission Report on Criminal Procedure, of including in this Bill matters which related to surveillance, to electronic devices and matters of that kind. The noble Viscount gave a reason why. I have to accept the reason that he gave, but I still regret that advantage was not taken of that opportunity.

The second misgiving that I have, as I tried to express most respectfully from these Benches, is in regard to the broad language that is used in regard to the Secretary of State's discretion on matters of national security, undefined. Even more am I worried, as I said then, about the broad words, "the economic well-being of the United Kingdom", in spite of the provisions in the Bill that make it quite clear that these are external matters. It would be most unfair if I developed my next theme, because the amendment was down in the names of noble Lords who sit on other Benches than mine, but I supported their amendment in regard to the special setting up of a complaints commissioner in regard to the security services. Having said that, I leave the matter there because others who were responsible for that amendment may want to say something about it. I also regret—it is the last regret that I shall express—that the tribunal set up under this Bill cannot deal with unauthorised interception. I think that that is a void and I think that it is an avoidable void.

Before I very briefly come to the advantages that have accrued as a result of various amendments to the Bill, I come to the neutral zone, as it were, of the ouster of the courts' discretion in regard to judicial review. I regretted, and I still regret, if it was intended that there should be a complete ouster, that the Bill did not use the normal language, clear in its terms, that the jurisdiction of the courts was being ousted. Instead of that, we get it through the back door of Clause 9, which does not allow evidence to be given in regard to offences under Clause 1. That is a back-door method because it makes it almost impossible, if not impossible, to have a judicial review, but it does not say that the jurisdiction of the courts is ousted. I tried to give examples—I shall not repeat them to your Lordships at this stage—of the exceptional case that ought to be provided for. I ventured to put down an amendment to allow in that exceptional case, but it was not an amendment that found favour with your Lordships and I do no more than express my regret.

More cheerfully, may I briefly turn to the advantages that I think this House has brought to the Bill by virtue of its consideration. The first one is that a criterion mentioned in the White Paper, and a very essential one, has been incorporated in the Bill showing where the Secretary of State ought to move in making his decision—the measures, the thoughts and the principles that ought to guide him. Instead of that being left to a guideline, as was once thought the appropriate course, the language of the White Paper—one of those essential ingredients for him to consider—has found its way into the Bill. The principles of judicial review, by which the tribunal is to act, have been given more clarity of language and have been more clearly defined as a result of your Lordships' deliberations and of the way in which the Government accepted them.

There is the destruction of irrelevant material that has now been provided for in the Bill. It was not there when it came to your Lordships. The tribunal quorum has been properly revised as a result of your Lordships' deliberations. Lastly, Clause 9, which I mentioned before, has now been clarified as a result of your Lordships' deliberations and of the way in which they were received by the Government, in that matters that come before the industrial tribunal in certain circumstances are now to be excluded from the provisions of Clause 9.

I end as I started, by expressing my thanks to the noble Viscount. I believe that this thought will be echoed on all sides of your Lordships' House. He conducted this Bill not only with courtesy but with that flexibility which is so admirable in regard to Ministers in your Lordships' House who have the charge of Bills. When he felt that a point was made with which he agreed, we were at once told, or told very soon afterwards, that the Government accepted it and were going to do something about it. When he was in doubt he had the courtesy to say that what had been said in your Lordships' Chamber, from whatever part of that Chamber it came, would be duly considered. Consideration was given, courtesy was extended and we are grateful.

Lord Denning

My Lords, may I, on behalf of myself and others, thank the noble Viscount the Lord President of the Council, and indeed the Government, for this most important Bill. Before it came to your Lordships' House, the law was in a vacuum. There were reports—Lord Birkett's report, Lord Radcliffe's report and Lord Diplock's report—and two White Papers, which did not govern the law at all on this important matter of telephone tapping. It was just at the discretion of the Secretary of State or whoever it may be.

The European Court of Human Rights said that we had disobeyed Article 8 of the European Convention, which states: Everyone has the right to respect for his private and family life, his home and his correspondence. In our English law, we had not implemented that. We have not yet in our English law a right of privacy, which I think we ought to have. We know how the newspapers obtrude on the grief of others and do all sorts of things to obtrude on privacy. We have no law or right of privacy at the moment and telephone tapping can be the greatest infringement on a right of privacy.

The important clause in this Bill is the very first one. Telephone tapping is unlawful unless by due authority. It is a criminal offence which can be punished in the criminal courts. In a way it is outlawed, save for the cases when the Secretary of State issues his warrant to authorise it for reasons of national security and indeed for the detection and prevention of crime, and for one or two other reasons. That is a most important clarification of our law. It fulfils completely the requirements of the European Convention and what the European Court said.

There are the incidentals. If a person is worried that his telephone is being tapped, he has a machinery for remedy. He can go to the tribunal and ask for an investigation to be made to see whether his telephone is being tapped, lawfully or not. The tribunal will inquire into it. It has to be done in the greatest confidence because we must not allow criminals or spies to get to know our means of communication or detection. Those involved will do it in the greatest confidence and will detect any unlawful telephone tapping which is not authorised by the warrant. There is protection with recourse to the tribunal and afterwards, if need be, prosecution in the courts. Throughout the Bill the important safeguard in all the inquiries is the security of the state. A lot of the inquiries must be completely secret, otherwise the criminals will get to know of our means of detecting them.

I have no reservations whatsoever, but I should like to say just this. I said that we had no right of privacy in our law. It has been remedied in this respect, but might we not think some time of a right of privacy to protect us not only from telephone tappers but also from the newspapers and the rest of the media when they intrude, as they sometimes do, on the privacy of private individuals? Might we not also think that that European Convention is a good one? Everyone has the right to respect for his private and family life, his home and his correspondence. This Bill does it in one important sector. Let us hope that in due course it can be extended to others. I warmly welcome, and thank Her Majesty's Government for, this most important Bill.

3.45 p.m.

Lord Harris of Greenwich

My Lords, if I may, I shall echo some of the words of the noble and learned Lord, Lord Denning, and the noble Lord, Lord Mishcon, in thanking the noble Viscount for his general response to the amendments which have been moved in your Lordships' House. Perhaps I may begin by saying that I very much agreed with what the noble and learned Lord has just said. I am, as it happens, fairly firmly opposed to a general right of privacy being embodied in English law. I believe that a very substantial series of problems would arise were we to do that. Nevertheless, if by chance the noble and learned Lord was referring to a recent example, where in the view of many of us Fleet Street has behaved in an intolerable fashion, I entirely agree with everything he said. But on the narrower question of the issues raised in this Bill I should like to say just three things.

First, I very much welcome—the noble Lord. Lord Mishcon, touched on this—the fact that the noble Viscount responded so reasonably to the defeat of the Government on the Telecommunications Bill. The noble Viscount said then that he would bring forward legislation irrespective of the judgment of the European Court of Human Rights, and that he did. We expected it of the noble Viscount, and we very much welcome the fact that this Bill came forward, putting, as the noble and learned Lord, Lord Denning, has just said, telephone interception on a statutory basis. That was absolutely right.

It would be a mistake to go through every amendment to the Bill that one favoured and to recapitulate the arguments which were used, unpersuasively so far as the House as a whole was concerned. Nevertheless I think it was a pity that the House did not accept the amendment dealing with the question of having an ombudsman within MI5 and MI6. I repeat, I do not want to go over the arguments again. Nevertheless I believe that some extremely grave allegations were made in the Channel 4 programme by Miss Massiter and another former member of MI5. This issue will come back, and even conceivably will come back to haunt us in the future. I very much hope that it will not.

I do not approve of civil servants who leak confidential information to newspapers or television programmes, but I believe there is an overwhelming national interest in building up the morale of both MI5 and MI6. They have both had an extremely difficult time, as we know, over the past 25 years. A number of entirely undeserved and indeed reckless allegations have been made against both. I believe that, if we had secured some amendments to the Bill of the kind which were put forward by my noble friend Lord Foot and myself, some of the anxieties might have been stilled. Nevertheless, that was not to be, and I very much hope that in the light of what the noble Viscount said when he responded to the debate the new director general of MI5 will consider this matter very carefully in the review that he is now undertaking. Those who know the new director general know him to be a public servant of the highest quality. I am sure that he will look at this matter and the other procedures involved most carefully.

I think it is only right to add this. I believe that in this country there is too much nonsense talked about questions of national security. It is ridiculous that in this country we talk about the new director general of MI5 without giving his name and about the head of SIS without giving his name. In the United States, a country which has rather more secrets to preserve than we have, everybody knows who runs the CIA and everybody knows who is the director of the Federal Bureau of Investigation. The sooner we move to a situation where we name these gentlemen, the better and more sensible it will be.

Lastly, I should like to say something on a purely personal note. I am sorry that I was not present during the Committee stage when the noble Viscount made a point with which, if I may say so, I very much agreed. During the proceedings of this Bill in the House of Commons a substantial amount of time and attention was devoted to a statement which I made during a debate in this House in 1975 when I gave on behalf of the then Government a definition of subversion. It is always a mistake to look back at one's words of the past, as I am sure the noble Viscount will agree, and to consider whether in fact if one were going to do it all over again one would perhaps choose different words. But I am bound to say that I am not sure that I would have used different words. I should like to confirm just for the record and for historical accuracy that what the noble Viscount said was entirely right. The suggestion that I gave a definition of subversion off the top of my head is manifest nonsense. It was seriously considered certainly so far as I was concerned as well as by my right honourable friend the then Home Secretary. Having looked at it, I am still at peace with that definition and I see no reason to move from it.

Having said all that, I repeat that I am very grateful on behalf of my noble friends for the general approach of the noble Viscount to this Bill and I wish it well on its way.

Lord Foot

My Lords, perhaps I may first associate myself with all that has been said about the usefulness of this debate upon this Bill in this House. To the extent that that is true, it is very largely because of the attitude that has been taken from the beginning by the noble Viscount the Lord President of the Council. The House is in my view deeply indebted to him for the way in which he has managed this Bill, and for the way in which he has been prepared to listen and to accept an argument when he has found it has force.

This House has a great advantage in being led by the noble Viscount. When he first introduced this Bill he brought with him, as it were, from the Commons two amendments to which the Government had already agreed. At Committee stage, the noble Viscount introduced amendments to give effect to what had been decided in another place. He gave the House an assurance at the beginning of the Second Reading debate that he would carefully listen to and consider any amendments which might be proposed. That undertaking has been honoured both in the letter and in the spirit. Before I leave that matter, I should like to pay tribute also to the very important part that has been played in this Bill by the noble Lord, Lord Mishcon. He has been the leader of the debate from this side of the Chamber and carried the main burden of it throughout. The House ought to feel indebted to him for the role that he has played.

Perhaps I may in addition deal with only one other matter, a small matter of unfinished business. Towards the end of Report stage of this Bill, I raised a question to which the noble Viscount gave me a provisional answer, but to which he said he would return and would consider again. The question arose on an amendment moved by the noble Lord, Lord Mishcon, which was intended, had it been carried, not only to enable the tribunal to consider in any particular case whether Clauses 2 to 5 had been properly complied with by the Secretary of State but which would also have enabled the tribunal to consider whether the provisions of Clause 6, which are the so-called safeguards, had also been properly looked after.

The answer which the Government gave at that time in resisting the amendment of the noble Lord, Lord Mishcon, was twofold. First, that the matters contained in Clause 6—that is, the safeguards—were of an entirely different nature in principle from the matters contained in Clauses 2 to 5, which are the regulations governing the issue of a warrant by the Secretary of State. The second leg of the Government's argument was that in any case there was a power in the commissioner to review the arrangements made under Clause 6, and that therefore there was no need for any alarm because the matter would be looked after.

My question on that occasion was whether it was right that the commissioner should have any power to review the implementation of the arrangements made by the Secretary of State under Clause 6. It is perfectly clear from the wording of the Bill, and of Clause 8 in particular, that the commissioner has a power—and indeed a duty—to review and supervise the adequacy of the arrangements made in a particular case by the Secretary of State. However, it seemed to me that that did not go far enough and that there ought to be some words which would make it clear that the commissioner would not only be responsible for supervising the adequacy of the measures but that he ought also to have the power to supervise and review the implementation and carrying into effect of the arrangements made by the Secretary of State, and how all that was done.

The noble Viscount has been kind enough to write a letter to me in which has reinforced what he said at Report stage (which was his provisional opinion) that the words of Clause 8 relating to supervising the adequacy of the arrangements are sufficient to cover and indeed do cover the way in which those arrangements are in any particular case actually implemented.

I have studied the noble Viscount's letter with care. I must confess that I am not entirely persuaded that he is right. In my innocence, I supposed and thought for a moment that if such was what the Bill was intending to say, then it might be better to say it. I know that is a very simplistic view of the matter, and I am quite prepared to believe that I have it wrong and that the noble Viscount has it right. However, I thought it may be worth while reverting to this point this afternoon in order that the noble Viscount may say a few words about that aspect if he chose to do so.

If the noble Viscount is right, and if the clause as now framed clearly gives the commissioner the power to look at the way in which the arrangements have been implemented in any particular case, and to make a report to the Prime Minister if he finds that they have not been properly implemented, then I suggest it would be very helpful to future commissioners if they could look back at our debate this afternoon and could see reported from the lips of the noble Viscount the reasons why he considers that the commissioner does in fact have the power that I have mentioned. I thought that it might be helpful and preferable to raise this question in that way rather than put down an amendment at this late stage in the affair.

Viscount Whitelaw

My Lords, I rise to thank noble Lords who have spoken for their kind remarks. But in the main I should like to reply to the very reasoned way in which the noble Lord, Lord Foot, has put forward what is a very important question. When I first heard his speech—and those who advise me will know this—I went away and said, "I think that Lord Foot is right. It seems to me that the point he makes is a very sound one". I asked for his point to be studied properly and I wrote back to the noble Lord, explaining what I had been informed and advised. I understand that the noble Lord does not feel wholly satisfied; but I agree with him that it would be helpful if I were to repeat what I said in my letter to him in this particular debate so that reference could be made to it in the future. That, I gladly do.

I can assure the noble Lord, Lord Foot, that in the Government's view the commissioner's statutory terms of reference mean that he will have to review the implementation of the Clause 6 safeguard arrangements. Under that clause the arrangements have to secure certain objectives such as minimising disclosure, and the commissioner will be able to judge their adequacy (that is the term in the Bill) only if he sees, as a matter of practice, those objectives are being secured. If they are not, then the arrangements will not be adequate and he will be obliged to report his conclusions to the Prime Minister.

In that sense, the commissioner's task will not in essence differ from that of the existing monitor of interception arrangements. As the noble and learned Lord, Lord Diplock, indicated in his first report in that capacity in 1981, it was by examining what happened to individual intercepted communications that he satisfied himself that the safeguards were being met. I wish to state very firmly that the Government wish this to be the outcome, just as they believe that this Bill secures it. The commissioner will of course be able to take account of this statement in the Official Report, and I can give the noble Lord a firm assurance that the Government will make this view known direct to him.

On Question, Bill read a third time, and passed, and returned to the Commons with amendments.