§ 4.28 p.m.
§ House again in Committee.
§ Clause 2 [Warrants for interception]:
Lord Mishcon moved Amendment No. 4:
Page 2, line 19, leave out paragraph (a) and insert—
("(a) for the defence of the realm or to prevent subversion or espionage, and in this context subversion shall mean the attempt or having in contemplation the attempt to overthrow Parliament by unlawful means;").
§ The noble Lord said: In moving this amendment I wonder whether I may be permitted to give a brief—and I promise to be brief—preface to it which I I hope not to repeat on any other occasion. It is a preface which I want to introduce only so that I can respectfully say to the Committee what it is that I think it should be rather careful about. It goes back to the history behind this Bill and I only say in regard to that history that for a very long time there was a procedure, not incorporated in any Act of Parliament, under which what we have loosely called telephone tapping took place. That was to secure certain matters which were of importance to the state, and we shall be dealing with those in a moment.
§ There then came the Malone case. I shall not go into that because we dealt with it on Second Reading, but some of your Lordships may not have had the privilege of hearing that Second Reading debate. The Malone case was brought by an individual who had had his telephone intercepted, as he found when he was the defendant to certain criminal proceedings. His counsel discovered this when he looked at a policeman's notebook. When that gentleman was acquitted of the charge preferred against him he brought proceedings on the basis that the European Convention on Human Rights, to which we are a signatory, had been breached in his case.
§ He brought those proceedings in our own High Court and they came before Sir Robert Megarry, the Vice-Chancellor—a very distinguished judge, if I may say so—and he found that there had been no breach of English law because we had no Act of Parliament in existence at all to deal with telephone tapping. Therefore the plaintiff, Mr. Malone, had no rights before an English court and he would have to go to the European Court. In the course of his remarks per curiam the learned judge said that that was a matter which in his view cried out for legislation. The matter went before the European Court and it found that we were in breach of the convention in that we had no legislation which laid down and regulated when it was that telephone tapping could take place.
§ There was a White Paper in 1980 and that was followed by a White Paper in the course of this present year. An amendment was moved to the Telecommunications Bill—one, if I may say so, which I had the privilege of moving from these Benches—which, with the support of all sections of the House, was carried. The noble Viscount, dealing, as one would expect of him, so ably with this Bill, gave an undertaking that the Government would bring 866 forward legislation in view of the amendment which was passed in this House. This is the important legislation with which we are now dealing.
§ When this matter came before another place there was not enough time—and I say that in all frankness, and it is quite apparent from the Committee and Report stages in another place, if one reads them—to deal with all the matters which I believe that Members of another place would want to deal with or with the debates which occurred on some of the amendments. If noble Lords turn to Hansard in regard to those stages of the Bill when it came before another place, they will find that, on more than one occasion and from more than one part of the House, the hope was expressed that in your Lordships' House attention—and very rapt attention—would be given to some of the amendments that were discussed and may have failed there or could not be adequately discussed at all.
§ I respectfully say to the Committee that a very heavy onus rests upon us as we deal with this matter, first, because we are dealing with a very vital question affecting an important right, as we regard it, to all our citizens—namely, the right of privacy——as against the obvious right that there must be in the national interest, however regrettable it may be, interception of communications, including those on the telephone. That is the first reason why we have to be careful.
§ The second reason is that this is the first time that any such legislation has been put upon the statute book or is in the course of being put upon the statute book, and therefore we have to be very careful that we get it right. Thirdly, as I have said, Members of another place placed reliance upon your Lordships' House to deal with this matter with great care, and they said so.
§ It is against that background and in that spirit that my noble friends and I, in association in many cases with other noble Lords who have put their names to amendments, for which I am deeply grateful, ask the Committee to look at all the amendments, and I start with Amendment No. 4. If one looks at Amendment No. 4, one sees that an attempt has been made to define something. The definition that I have sought to give in this amendment is to what is now called in the Bill in rather vague terms, your Lordships may think, "the interest of national security".
§ The importance of the amendment is this. Under Clause 2(2) one has very strict rules as to when the Secretary of State can issue a warrant, and so it goes to the very heart of the Bill—the very heart of the matter of the infringement of the right of privacy of the individual. All noble Lords know how obnoxious it can be to have one's telephone calls intercepted.
We are not dealing, if I may say so, again in parenthesis, only with rights which may or may not appertain to people committing treason, acts of terrorism or criminal acts. We are dealing with ourselves, ordinary members of the public as we are, and members of the public outside this House in regard to the very precious right of privacy. One wants to see that there is specific language in any Bill. This is the first Bill, I repeat, of its kind dealing with the
question of interception of communications. One finds in Clause 2(2) these words in the Bill as it stands:
The Secretary of State shall not issue a warrant under this section unless he considers that the warrant is necessary—
(a) in the interests of national security",
and there the Bill stops.
§ It is left to the Secretary of State to define what he thinks to be "national security". Does he think, for example—and I give a specific example, whatever one's political views may be on this matter—that those who are campaigning for unilateral disarmament are doing something contrary to national security? I am giving that as an example for one very good reason. There have been complaints from those who are in such an organisation that their telephones have been tapped. I speak very frankly, but only personally, from this Dispatch Box. I do not happen to be a member of any such organisation, and I do not happen to support the views of any such organisation. But I support the right of anybody to hold that view, provided that they hold it in a proper way and consistent with our laws and do not in any way breach those laws.
§ There are other aspects that one can look upon as being in breach of national security or in the interests of national security. The Secretary of State for Foreign Affairs will have a view of foreign policy, but are his views about whether one should have an alliance with country A or country B matters of national security; and do people who hold a contrary view in any way breach national security? All that is capable of debate and argument because the words are vague.
Those who support this amendment have endeavoured to do just that—to look at the Government's own White Paper to see whether within the confines of that White Paper one can find words which will give much more precision in this Bill. One can find helpful words on page 3 of the Government's White Paper, which was presented to Parliament as recently as February 1985. This is what paragraph 4 says:
The Government believes that the properly controlled interception of communications for certain limited but important purposes is not only justified but essential in the public interest. For example, major criminals"—
we are not dealing with that aspect at all in paragraph (a)—
or those engaged in subversive, terrorist or espionage activity should not be free to make use of the postal or telecommunications systems to further their activities with immunity from detection".
Thus the Government were thinking of "subversive, terrorist or espionage activity".
Perhaps I may now turn to the amendment, which goes away from the broad, vague words, "national security". One has to think in terms of the interpretation which will be given these words in years ahead, whatever colour the Government may be. If Members of the Committee look at the amendment, they will see that for the words "national security" there have been substituted the words:
for the defence of the realm"—
that is broad enough—
or to prevent subversion or espionage".
As those words were drafted, it obviously occurred to the draftsmen of them. If I may say so, I am indebted
to many organisations who have been to see me because they regard this Bill as being so important. Not least of them is the organisation called Justice, whose representatives came to see me and who have been responsible for much help in regard to the amendments which, together with other noble Lords in the Committee, I am placing before your Lordships.
In looking at the definition of "subversion", one was immediately tempted to see what it was that our law, our leading statesmen or our leading judges had said when they came across those words. I happen to be looking at this moment at one of the noble and learned Lords who endeavoured, in one case, to define the word "subversion". These words come terribly near to the words that he used in his own definition of subversion. As the noble and learned Lord, Lord Denning, well knows, I am referring to him. So that nobody should be in any doubt, in this amendment one endeavours to define even the word "subversion" by saying that it,
shall mean the attempt or having in contemplation the attempt to overthrow Parliament by unlawful means".
So one has the definition of somebody who is endeavouring, or a group of people who are endeavouring, to upset the whole of our democratic system by attempting or considering the attempt to overthrow Parliament by unlawful means.
§ In Committee it may be said that somehow or other I have failed in this definition that I have tried to give; that there are some words that are wrong words, or that there are some words that I have omitted. This is the Committee stage. If I am told that in the detail something has gone wrong, obviously my noble friends and I are prepared to see that an amendment comes forward at Report stage, or that the Government put forward some amendment, in the light of what is said in support today.
§ If I may respectfully say so, what I am trying to do at this Committee stage is to bring home the principle that one cannot leave the bare words "national security" or "in the interests of national security"; one must be more precise. I have tried this in my amendment. If I have succeeded, I hope the Committee will accept this amendment. If I have failed, still I hope that the Committee will accept this amendment on the basis that the principle is right, even though one may have to use other words at a later stage. I beg to move.
§ 4.45 p.m.
§ Lord Denning
The noble Lord has flattered me by quoting what I said about subversion. "Subversion" is not the word we have to consider. We have to consider here "the interests of national security". Those words are put into this Bill because they are the very words in the European Convention on Human Rights which we are seeking to implement by this Bill. The very words in Article 8 are:There shall be no interference by a public authority with the exercise of this right [of privacy] except such as is in accordance with the law and is necessary in a democratic society in the interests of national security".The convention does not provide any further definition. If the matter came before the European Court of Human Rights, again those would just be the very words to consider. They are used in our own 869 legislation, too. In the Immigration Act of 1971, the words are "in the interests of national security". They are not words with any defined legal meaning. They are words which have to be interpreted by the Secretary of State himself, not by the judges. It is not a legal term.
We had to consider this matter very closely in Mr. Hosenball's case, where the Home Secretary ordered that he should be deported in the national interest. There I ventured to say in my judgment in 1977 that the most important words used by the Home Secretary were that he was deporting Mr. Hosenball "in the interests of national security"; those are the very words which are used and the very words which are used in the Immigration Act of 1971—that a man could be deported, as conducive to the public good, as being in the interest of national security. The court was very careful there not to attempt to define the indefinable because there it is for the Secretary of State to deal with it.
Perhaps I may read the way we concluded the judgment in that case:There is a conflict here between the interests of national security on the one hand and the freedom of the individual on the other. The balance between these two is not for a court of law. It is for the Home Secretary. He is the person entrusted by Parliament with the task. In some parts of the world national security has on occasions been used as an excuse for all sorts of infringements of individual liberty. But not in England. Both during the wars and after them, successive ministers have discharged their duties to the complete satisfaction of the people at large.… They have never interfered with the liberty or the freedom of movement of any individual except where it is absolutely necessary for the safety of the state. In this case we are assured that the Home Secretary himself gave it his personal consideration, and I have no reason whatever to doubt the care with which he considered the whole matter. He is answerable to Parliament as to the way he did it and not to the courts here".The reason behind all this is the fact that the words "in the interests of national security" are not capable of legal or precise definition. The circumstances are infinite in which the national security may be imperilled, not only by spies in espionage but in all sorts of indefinite ways. I venture to think it would be a mistake for the courts or for Parliament to attempt a definition by way of instructing the Home Secretary in a matter which is especially his concern. If I may say so, in that very judgment I venture to quote the words of the Home Secretary in 1971, in which he makes it quite plain that such decisions:are … of a political and executive character which should be subject to Parliament and not subject to courts of arbitrators, and so … Whether an individual's presence … is a danger to this country is not a legal decision. It is not a justiciable issue or a matter of law; it is a matter of judgment".I quote that case because there we have the very words, "in the interests of national security". There, I suggest, it would be wrong to attempt to fetter the Home Secretary, the responsible Minister, on this important matter as to whether a warrant is to be issued in the interests of national security. Let him consider it properly. Let him decide it, and do not let Parliament attempt to fetter his hands by a legal definition. So I would oppose the amendment.
§ Lord Maude of Stratford-upon-Avon
I listened with great interest to the noble Lord, Lord Mishcon, but I found myself at the end of it all confused as to the purpose, or at least the end results, of the amendment. The noble Lord talked about the need to substitute 870 other words for "national security". He referred to campaigners for nuclear disarmament who were caught under the national security provisions. But equally, surely, they would be caught if the words "defence of the realm" were substituted for "national security". The noble Lord shakes his head; but it must be a fact that whether or not we have nuclear arms is a matter concerned with the defence of the realm.
Much more important, it seems to me, is the definition of subversion. It is apparently only the overthrow of Parliament. But is it not subversion to incite to mutiny in the armed forces? Is it not subversion to attempt to pervert the police in their duty? Surely this is a definition that is far too narrow and quite impossible to impose.
§ Lord Campbell of Alloway
I should like to make a brief intervention, looking at this from a practical point of view. If the warrant is challenged either in the courts here or in the Court of Human Rights, the affidavit of the Secretary of State would be treated as conclusive. Whether you have the words "national security", as in the clause, the words proposed in the amendment, or any other words that may be proposed, the affidavit of the Secretary of State is still conclusive. It is not understood how there is any assistance to the administration of justice or to the cause of liberty if one seeks to define subversion. At the end of the day it is open to the Secretary of State to consider subversion as related to his concept of national security. The essence of the problem has been advanced already by the noble and learned Lord, Lord Denning. The problem is not how to improve the definition proposed by the noble Lord, Lord Mishcon. The difficulty is that one is really seeking to define the indefinable.
§ Viscount Whitelaw
I should like to say at once that I agree with the noble Lord, Lord Mishcon, that we have an opportunity to consider in a calm atmosphere some very important matters. The speeches that have already been made show how important it is that we should be able to do just that in regard to some very difficult questions. I should also like to say to the noble Lord that his account, as a preface to the events leading to the introduction of the Bill, was, to my knowledge—and I had some part in that from many different points of view—very correct and very proper.
The noble Lord is also right in saying that some of these amendments to Clause 2 lie at the heart of the Bill. They do, of course. They are the basis on which the warrants that the Secretary of State issues are, in fact, decided. I am very grateful to the noble Lord for having raised this question. It was raised and aired in another place, and it would certainly be quite wrong if we did not examine it and have the benefit of the views of many people, including those who have spoken this afternoon.
There are a number of broad considerations that touch upon the amendment. The first is one upon which I laid great stress at the time of the Second Reading of the Bill. It is—I must repeat it—that, through this legislation, the Government seek no extension whatever of the practices that they have followed or of the practices that have been followed by successive Governments of both major parties over a 871 very long period. I appreciate that the noble Lord, in moving the amendment, is in no way disputing that principle, and that he is indeed genuinely seeking to give it a more precise effect by an alternative formulation. It is nonetheless important that I should stress that once again, because the second point follows from it.
The term "in the interests of national security" now contained in the Bill, as the noble and learned Lord, Lord Denning, clearly pointed out, is precisely the term contained in Article 8 of the European Convention on Human Rights. It is not, therefore, something idiosyncratically British that this Government are seeking to use as a cover for the authorisation of interceptions. Indeed, the Government have made a point of adhering to the approach of that article of the European Convention in all the criteria set out in the clause. Surely, the Government would have been very unwise not to have done so. It was precisely to meet some of the problems that we had with that convention that we are discussing this Bill and the reasons for bringing it into effect today. But the matter goes further.
The term "national security" is to be found not only in the European Convention. It is far from being a stranger, as the noble and learned Lord, Lord Denning, said, to your Lordships, who, in one way or another, I am assured—no one will expect that I have checked this myself, but I am certainly assured of it—have agreed to its inclusion in some 50 Acts of Parliament over the years. These have not just been Acts of Parliament introduced by Conservative Governments. The Employment Protection Act 1975 and the Race Relations Act of the following year are examples of legislation introduced by the noble Lord's party in which this term was used. It was thought satisfactory on all those occasions.
I understand that this Bill is somewhat different. That is a point that the noble Lord fairly makes. I must, however, ask him whether, in view of the many occasions on which this phrase has been used, we would be wise to depart from it. No Government, as the noble and learned Lord, Lord Denning, again remarked, have found it necessary or appropriate in the past to define the term. Important decisions affecting the individual can be taken in the examples I have cited of other legislation. By their nature, decisions concerning matters of national security must be for Ministers, who must form a judgment in the light of all the information available to them about what does and does not raise issues of national security.
But there is something on the side of this Bill which is uniquely different from the position in the case of some of the others I have mentioned. It is that the tribunal has uninhibited access to all the acutely sensitive material available to the Secretary of State. His decisions on the most delicate aspects of national security are open to review and to the possibility of being overturned, just like decisions, for example, on serious crime. This is indeed very different from the situation in an ordinary court, where matters of national security may not be subject to the same kind of scrutiny and where the word of the Minister may well have to be accepted without any examination of 872 the facts behind it. Indeed, in much of the legislation passed under successive Governments a certificate of a Minister is conclusive as to whether an action was necessary in the interests of national security.
There is a further important consideration to which, I fear, I should perhaps say your Lordships will find me returning when we examine later amendments. This is the term "necessary" in Clause 2. It obliges the Secretary of State to ask himself whether a warrant is really necessary for the specified purpose. It governs all the criteria in the clause, including national security. We are not, therefore, considering a situation where any warrant could be issued simply because it might be interesting to obtain the information in question. "Necessary" is a stiff test that must always be passed. It is bound to be among the most important considerations in the mind of the commissioner and of the tribunal.
I think I can say to the noble Lord and to your Lordships that, having operated the system without legislation in the past, I certainly sought to apply a criterion of that sort to all my own personal decisions, as I believe one must in a very difficult situation. But certainly the word "necessary" would perhaps make a Home Secretary think even more carefully, and the fact of the tribunal would also make him think whether his assessment of "necessary" would be satisfactory to the tribunal. Therefore, I suggest that these are very considerable safeguards.
The Government's concern about the amendment is not based simply on a belief that the present term is satisfactory, although I think that one has to say, and decide, whether anything more satisfactory can be found to put in its place. The noble and learned Lord, Lord Denning, thought not. The amendment talks first of the "defence of the realm" and the prevention of "subversion or espionage". These appear to be aimed at the domestic aspects of national security. I think that I am probably right in saying that it has been culled largely from the terms of the public directive of the security service.
There is, of course, a great deal more to preserving the nation's security than safeguarding against subversion and espionage or "defence", in the narrow sense of that word. Indeed, the term "defence of the realm" in this particular context is, as I think my noble friend Lord Maude made clear, of very uncertain effect.
Paragraph 10 of the White Paper published in February stated that:Interception is authorised in accordance with the Government's requirements for intelligence in support of the Government's defence and foreign policies when this is necessary in the interests of national security".This refers to the fact that interception may be necessary to protect our national security at international level by providing secret intelligence in the foreign and defence fields. There can be no doubt that the acquisition of such intelligence may sometimes be essential in the interests of national security. Without it the Government's ability to safeguard the country's vital interests could be undermined in a way which I know is the last thing that the noble Lord would wish.
873 Accordingly, we believe that this amendment would in future deprive the Government of a capacity which successive Governments have thought necessary. I certainly do not mean to put that in any way too baldly, but that is what we believe and it is a consequence which I think I owe it to your Lordships' Committee to state clearly. Noble Lords will not expect me to elaborate on these matters. I think that I have made myself abundantly clear in what I have said so far.
The second limb of the noble Lord's amendment deals with subversion. At Second Reading the noble Lord expressed a preference for the term mentioned in the report of the noble and learned Lord, Lord Denning. The noble and learned Lord now suggests that he was in some way being trapped in that he would not wish to import his particular definition into this Bill. However, that is not wholly for me, though from the way in which I am speaking it is clear where my sympathies lie. What I do and should say is that this Government, like their predecessor, have adhered to the formula enunciated in your Lordships' House by the noble Lord, Lord Harris of Greenwich, in 1975 when he was a Minister at the Home Office. That formula was not, as some suggested in another place, an off-the-cuff remark. It reflected a very longstanding practice.
The term "subversion" is used in a variety of contexts, of which interception is only one. The definition enunciated by the noble Lord, Lord Harris, was most recently used in the Home Office guidelines on the work of the Special Branch. This definition was only very recently examined by the Select Committee on Home Affairs in another place. As my right honourable friend the Home Secretary said in his evidence to the Select Committee, the definition has stood the test of time. It is narrow enough not to encourage unnecessary inquiries, and broad enough to enable the security of the realm to be adequately protected.
I must emphasise to noble Lords that both elements in this definition have to be met before it can be brought into play. As far as this Bill is concerned, the Government believe that the definition should remain non-statutory. This has the advantage that should circumstances change and should it be considered desirable to modify or qualify the definition in some way, that would be posssible. Naturally, your Lordships would be informed if a different or modified definition were to be applied.
There is one final point to which I should like the noble Lord, Lord Mishcon, and other noble Lords to give the most careful attention. It was a point raised by my noble friend Lord Campbell of Alloway. The Bill contains no reference to subversion. If in the future a Secretary of State were ever to be faced with an application connected with subversion, he would have to satisfy himself that the warrant was really necessary in the interests of national security. He would need to do that with an eye to the attention that the warrant could be expected to receive from the commissioner and with an eye to any future review of the tribunal. I do not believe that this would in any way be a straightforward matter. The activity in question would have to be of a very substantial kind before it was of the sort which made interception necessary. By including the 874 term "subversion" in the Bill in this way the noble Lord's amendment effectively makes the automatic connection.
It has been suggested to me—and I can see how it would happen—that the end result might be to make it easier for the Secretary of State to issue a warrant in these circumstances rather than to limit the possibilities. The Government are certainly not seeking to make matters easier. They are not seeking any extension of the existing strict criteria.
I think that the Committee would have expected me to cover a good deal of ground in responding to a very important amendment on a very difficult subject. I believe that the Bill has the best definition for many of the reasons which the noble and learned Lord, Lord Denning, gave far more ably than I could conceivably hope to do. It is a great mistake to have an advocate and then seek to follow him. One simply accepts what the advocate says and wins one's case that way. Anything that I might say could possibly do my advocate's case harm, so I shall be very careful not to do that. I think that he makes a very strong point. Having heard what has been said in the debate, I think that the case has been made out to a very considerable extent for not changing the present term in the Bill, which I repeat is used in the European convention, which we seek to follow in this Bill.
I must also say that I think—I cannot prove it—that acceptance of the amendment might be difficult in the national interest. That could be the case. I hope that I have given the noble Lord something to think about. I do not wish to be totally dogmatic, but I do believe, as the noble and learned Lord, Lord Denning, said, that the difficulties of changing the definition of the "national interest" are probably so great that it is better to live with it.
§ Lord Mishcon
My Lords, following upon what the noble Viscount has just said, I understand that one of the learned Justices of Appeal who sits with the noble and learned Lord, Lord Denning, once described himself in the wording of another Act as "a consenting adult in public". Therefore, I echo what the noble Viscount has said in regard to not trying to improve on the advocacy of the noble and learned Lord.
I draw two crumbs—and they are only crumbs—of comfort from what the noble Viscount has said. First, he emphasised the care that would have to be taken under this Bill to see that the appropriate Secretary of State has all the safeguards and the guidelines in front of him before he makes an order to issue a warrant. The noble Viscount used and emphasised the word "necessary". Therefore, when we come to later amendments that deal with what the Secretary of State must consider and must have in his mind, these are considerations which I hope the noble Viscount will again bear in mind.
The other crumb of comfort that I draw is that the speech of the noble Viscount will be upon the record and I am sure will be referred to on many occasions, not only by the Secretary of State when he has to make his decisions, but also by the tribunal and the commissioner when they have to consider their duties under the Bill. That is the second crumb of comfort that I draw.
875 Only because the argument may recur, I will briefly, and I promise that it will be brief, refer to some of the comments that have been made in the discussion on this amendment. First, I know that the noble and learned Lord, Lord Denning, will forgive me but when he tries to plead in aid the wording of one of the European Conventions on Human Rights or one of the conventions prepared by the European Parliament or any of the other matters to which we have to agree as a result of our membership of the EC or as a signatory of a convention, I know that he is among the first to notice that there is a certain lack of precision which we would require in the wording that is employed. Therefore to invoke in aid that this is the wording of the European Convention and therefore we should stick strictly to it is not in accord with some of the speeches that the noble and learned Lord has made and which we have found valuable to us. Secondly, the noble and learned Lord, with complete fairness, quoted part of the convention which was appropriate to this clause. He did not quote to the end. I do not blame him for it.
§ Lord Mishcon
It may be too long but one sees where it is going if one follows the wording of the convention. This Committee would never agree to the following words because after talking about national security—I shall deal with economic well-being in a moment—the convention goes on to say:for the protection of health or morals",as being a perfectly legitimate ground for there being intervention in a telephone communication. I suspect that your Lordships would feel that whether health or morals were being interfered with was rather a subjective matter. It then goes on:for the protection of the rights and freedom of others".Your Lordships would never have agreed that that would be an exception to the right, but it is all in paragraph 2 of Article 8, a paragraph that the noble and learned Lord thought contained precious language to which we ought to adhere.
The noble Lord, Lord Campbell of Alloway, always makes contributions of great use. On this occasion I think he was making one of his rare errors because he referred to the fact that if a warrant of this kind were issued by the Secretary of State and it was challenged in the courts, all that would have to happen would be the production of an affidavit from the Secretary of State to say that it was a question of national security or some such expression, and that would be the end of the matter. As I understand the Bill, there is no right to go to a court of law at all. Therefore, if I may say so with respect, I do not think his intervention in that connection was appropriate.
§ Lord Campbell of Alloway
No, there is no specific right, but the right which always exists to go to the Divisional Court by way of judicial review remains under this Bill. It was in that context of the right to challenge any administrative act that, if an act were challenged or the issue of the warrant were challenged in the Divisional Court, the certificate would be conclusive.
§ Lord Mishcon
I shall not continue the debate with the noble Lord, although I always enjoy having discussions with him whether inside or outside this Chamber. I think he may find that he is wrong and that there is no right of judicial review in regard to this matter, whether administrative or on a point of law. If I am wrong and the noble Lord proves it to me outside this Chamber, I will make an apology on an appropriate occasion when we are discussing this Bill. But the courts of law are out, which is why the tribunal is given certain powers.
As I said, I draw two crumbs of comfort. I appreciate the intervention which was made by the noble Lord, Lord Maude of Stratford-upon-Avon, and I am grateful to him for his intervention. I could carry on the debate with him, but it would be of no use either to me or to anybody else. What I shall do on this occasion is to reflect upon what has been said and to ask your Lordships' leave to withdraw the amendment at this stage. However, I know that no one will think me unfair if I refer to some of the things that have been said in this debate, especially by the noble Viscount, in support of what I feel to be very important amendments that are to follow.
§ Amendment, by leave, withdrawn.
§ The Deputy Chairman of Committees (Lord Ampthill)
Before calling Amendment No. 5 I should point out to the Committee that if it is agreed to I cannot call Amendment No. 6.
Lord Mishcon moved Amendment No. 5:
Page 2, leave out lines 21 to 27.
The noble Lord said: I speedily move to another of the important matters with which we are dealing under Clause 2. Following Clause 2(2)(a), with which we have just been dealing, is Clause 2(2)(c), which reads:
for the purpose of safeguarding the economic well-being of the United Kingdom".
Let me at once say to the noble and learned Lord, Lord Denning, that these words are used in Article 8 of the convention. These words are qualified in subsection (3), making it clear that all that it is intended to cover is,
information relating to the acts or intentions of persons outside the British Islands".
Your Lordships will no doubt have noticed that whereas I was not supported by another name on Amendment No. 4, on this occasion I have the support of the noble Lord, Lord Harris of Greenwich, whose definition of national security was so approved of by the noble Viscount. I therefore hope that the obvious esteem that the noble Viscount has for the noble Lord, Lord Harris of Greenwich (which he may not have equally for me), is something that I can bring in aid in showing that the noble Lord, Lord Harris of Greenwich, has appended his name to this amendment.
§ Again I come to the questions: first, what is precise; and, secondly, what is advisable? On precision I hope that your Lordships and the noble Viscount will agree that giving the power to issue a warrant for the purpose of safeguarding the economic well-being of the United Kingdom is to cover an area so vague and wide that it 877 is not desirable to include it in this Bill. I do not think we are assisted by subsection (3). Before considering the advantage of such a provision I tried to ask at Second Reading whether it was to go abroad that we in Parliament have decided that the authorities can intervene in a communication, whether postal or by telephone, in regard to any communication occurring outside the United Kingdom which we believe is to our economic disadvantage. I tried to give an example at Second Reading. Indeed, I believe the example occurred to me while I was on my feet, but in the interval I have been unable to improve upon it.
§ Will your Lordships take it for granted that one of our merchant banks has a customer abroad with whose affairs that bank deals? Will your Lordships assume that from outside the United Kingdom that customer wishes to communicate with his bank either in writing or by telephone to ask whether the bank feels that it is sensible for that customer to buy or to sell a large quantity of sterling—a matter which might undoubtedly affect the economic well-being of this country in the view of the Minister?
§ Are we really to advertise to the world, and will it do our merchant banks, for example, any good to advertise the tact that if we feel, or if a Minister feels, that such a transaction can affect the economic well-being of this country, a warrant can be issued to intercept the telephone call or to intercept the communication between banker and customer?
§ It does no good to say, "Surely a Minister would not do that to one of our merchant banks". There are two answers to that. First, the Bill as it stands enables him to do it quite easily if he is satisfied that it might affect the economic well-being of this country. Secondly, whatever we may think about that, I am concerned (and I say so quite frankly) for the goodwill of our merchant banks and for the confidence that ought to be reposed in them by customers abroad. I think that the provision here is one which is bad because of vagueness and bad because of the fact that advantages that might occur through its inclusion are far outweighed by the disadvantages which, in my view, will occur if this provision is left in the Bill. I beg to move.
§ Lord Denning
May I say that I have every sympathy with this amendment because the provision is very vague indeed and really is not telling the Secretary of State much as to what he can do. But in my view I am afraid that it comes within the principle that I sought to state in the debate on the last amendment. These are wide words, they are not legal words, and we must trust the Secretary of State to act in the interests of our security and our economic well-being in the right circumstances, and not to abuse it. It is not a matter for lawyers; it is a matter for the supreme authority of the Secretary of State, who ought to take into consideration all the pros and cons of it. Although I sympathise very much with the amendment, for myself I think it would be much better to leave the general discretion of a political nature to the Secretary of State.
§ Viscount Whitelaw
Once again I am grateful to the noble Lord, Lord Mishcon, for having raised an important matter. I am also grateful to the noble and 878 learned Lord, Lord Denning, for what he has said. I have to say that I find this a much more difficult amendment to speak to, for a wide variety of reasons. I am therefore all the more grateful to the noble and learned Lord, Lord Denning, because I have to rely to some extent on the point which he made. In what I have to say it will be very important that I do not say anything which could be interpreted in any way as being harmful to the national interest. I know that the noble Lord and the Committee will understand. It is therefore very important that I confine myself very carefully over this, for I am afraid that this is one of the areas where I must do so.
There are two considerations which bear on this amendment. The first, to which I referred at Second Reading, is that the Bill as drafted defines the purposes for which interception may be authorised in a way properly reflecting the manner in which it has been authorised up to now by successive Governments of both major parties over a very long time. Once again I must say that there is nothing in this Bill—and certainly nothing in this provision which the noble Lords' amendment would seek to remove—which gives a power to the Secretary of State which is different from or greater than that which successive Secretaries of State have had in the past.
The Government take the greatest care to limit the use of interception to what is genuinely and importantly in the national interest. I do not believe that the fruits of their experience or of the experience of their predecessors should be lightly disregarded. In substance, therefore, the noble Lord's amendment is obviously addressed to the Bill and also to some extent to our experience over the years. The second general point is that all the grounds set out in Clause 2(2), including the criterion of economic well-being, are also contained in Article 8 of the European Convention on Human Rights.
I take note of what the noble Lord has said about reliance on the Convention on Human Rights. It has become one of those things which happen in debates from time to time. We are all relying on it. Before long, no doubt, somebody will ask me why I have not relied on it, and I shall have to say, if I am honest, that it did not particularly suit me at that moment in time. But at this moment of time I think it does suit me, and therefore I shall refer to it. There are other grounds in that article, such as public safety and the protection of health and morals, to which the noble Lord, Lord Mishcon, drew attention and which are not in the Bill because they cover areas in which the Government do not consider interception appropriate. The noble Lord said, very properly, that Parliament would not have it. I think I have to say to him that neither would the Government. They realise very well that if they tried to have it, Parliament would not. I think in both cases they would be right. The Government would be right not to do it, and Parliament would be right to stop the Government doing it even if they tried.
The criterion of the country's economic well-being is narrower than that in the convention, as I shall explain to your Lordships in a moment. But I think it is important to emphasise that we are not here discussing something outside the ambit of the convention. I am bound to say that this amendment would deprive the Government of the ability to 879 undertake interception for foreign intelligence purposes vital to the protection of the economic wellbeing of this country. I cannot emphasise too strongly that the removal of this provision would have serious and damaging consequences.
First of all, it must be emphasised that this provision is not directed against business people or trade unionists lawfully going about their business. It is concerned with the interception that is necessary for the effective protection of the country's economic interests at the international level. It is an important part of our foreign policy to protect the country from adverse developments overseas which may not necessarily affect our national security so directly as to justify interception on that ground but which may have damaging consequences for our economic well-being. I am sure that noble Lords will understand if I cannot give specific examples, even hypothetical ones. I am strongly advised that to do so in an area as sensitive as this would in itself be damaging. I have no doubt that your Lordships can readily imagine examples of vague external threats to our economy. If I refer in a general way to a threat to the supply from abroad of a commodity on which our economy is particularly dependent, then I hope that your Lordships will accept that I have gone, I hope, as far as I can by way of offering an example.
I can, I hope, give a better idea of what is proposed by setting out the various limitations which the terms of the Bill will place upon interception undertaken for the purpose of protecting the country's economic well-being. The first requirement is that one that I have mentioned before: that the warrant must be necessary. That is a requirement imposed upon all warrants and is a weighty test. As I have mentioned before, it is very different from "expedient" or "desirable". It requires the Secretary of State to consider whether the warrant itself is necessary, given both the value of the information and the opportunities for obtaining it in other ways. Under the clause the purpose of a warrant in this context must be to protect the economy from some threat to its well-being. It is the threat that gives rise to the interception. It is also the economic well-being of the United Kingdom which is at issue. The matter in question must be one of national significance. It cannot be a trivial matter which is peripheral to the nation's economic well-being.
Finally, we are concerned with the protection of the economy at international level. This is a vital aspect. The purposes of the interception must be purely external. It is in this respect in particular that the provision in the Bill is narrower than its counterpart in the European Convention, which has no requirement of externality. A warrant could be issued only to obtain information about the acts or intentions of persons outside the British Islands; that is to say, the United Kingdom, Channel Islands or the Isle of Man, which islands are therefore accorded the same protection as the United Kingdom proper for this purpose. Purely domestic developments cannot in any circumstance give rise to interception on the grounds that they affect the well-being of the economy.
880 5.30 p.m.
I believe that these restrictions are all material to the matters which we have discussed and which were raised by the noble Lord on this amendment. They are of course directly relevant to the functions of both the tribunal and the commissioner. The tribunal will be able to review decisions taken by the Secretary of State and will have particular regard to the tests of necessity and externality, to take but two examples; and the commissioner in conducting his free-ranging review of the whole system will of course equally have regard to these provisions in satisfying himself that the Secretary of State's powers are being properly exercised.
It is thus no more the case with this position than with any other that the Secretary of State is acting on his own. He will not be the final arbiter here in matters of law or of practice any more than in respect of other aspects of the statutory scheme. I realise that this is a difficult area, but from what I have said, by the indications that I have given, and by the emphasis I have put on the externality of the proposal I hope the noble Lord will see that I have made a strong case in what I accept is a difficult and very sensitive area. I hope that he will consider these answers carefully. I hope he will not feel that he has to press his amendment.
§ Lord Mishcon
I am very sensitive to the remarks that were made by the noble Viscount as to the responsibility which he bears and the difficulty in going into more detail than he has done. I in no way want to upset that sensitivity, because with the responsibility that I hope we always feel from this Front Bench it would be wrong of me to do so, in view of the words that he has used.
I think that the proper course for me is to study very carefully what the noble Viscount has said. I hope that in the meantime he will forgive me if I ask that he, too, considers some of the anxieties that he knows exist in regard to this provision in an Act of Parliament giving these very substantial rights under a warrant. I also hope that the Government may feel upon reflection that there are some more safeguards that can be put in here, some more definite wording, in view, indeed, of the comments of the noble and learned Lord, Lord Denning, that he would normally support an amendment of this kind because of the vagueness of the provision but that on the grounds of the considerations he put forward he did not intend to do so. I hope that with that mutual goodwill in regard to a sensitive matter of this kind the Committee will give me leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Mishcon moved Amendment No. 6:
Page 2, line 23, at end insert—
("( ) A warrant shall not be issued unless—
§ The noble Lord said: This is the time when I invoke the words that have been used by the noble Viscount in regard to the two amendments which I have asked the Committee's leave to withdraw at this stage. I am 881 paraphrasing the noble Viscount and I hope he will think that I do it fairly. When dealing with the other amendments he made it extremely clear that the Bill that we were considering made it very clear indeed that the Secretary of State had to find that certain things were necessary before a warrant could be issued, and here they were in the Bill.
§ There are two reasons why that principle should be carried out in practice. First, there ought to be a proper description in the Bill of the considerations which the Secretary of State ought to have in mind. Secondly, this will be—and I understand it perfectly well—a tribunal which will meet with a great degree of secrecy and which will not have to divulge the evidence that they have before them or the sources of their information. It is absolutely essential, the Committee may feel, that the tribunal know what Parliament expects them to do when they are carrying out the important duty—and they alone will be left with it—of seeing whether or not the Secretary of State was, if I may use shorthand English, right to issue the warrant. In this amendment I have imported not one word of my own; and I imagine that will be the view of those who have been good enough to associate themselves with this amendment. I have intentionally used the words, almost without alteration, of the Government's own White Paper when dealing with what the Secretary of State ought to have in mind by way of guidelines and conditions before the warrant is issued.
Perhaps I may bear out what I have just said by taking each one of the limbs of this amendment. It states:
A warrant shall not be issued unless—
(a) no other method of investigation is available"—
I stop there and refer your Lordships to page 3 of the Government White Paper of February 1985:
If normal methods of investigation are not available, it is right that means should exist to obtain information about such activities through the interception of communications, so long as this is carried out under clear safeguards and strict controls".
The Government say that is what is done by way of common practice whatever Government have been in power. The Government say that is what the Secretary of State ought to have in mind: that normal methods of investigation are not available. That, therefore, is the first limb of what must be put in a Bill and not left in a White Paper which, as your Lordships will realise, is no part of legislation.
I now turn to the second limb of the amendment in paragraph (a):
or all other methods have failed or are impracticable"—
There I refer to page 8 of exactly the same White Paper. I quote from paragraph 19:
As is stated in the 1980 White Paper, the Secretary of State will need to satisfy himself that other methods of investigation have been tried and failed or must, from the nature of things, be unlikely to succeed if tried".
I hope your Lordships will think that the words that are used in this amendment—
or all other methods have failed or are impracticable".—
are a proper summary.
With regard to paragraph (b), which deals with the question of the prevention or the investigation of serious crime, I refer to page 9 of the same White Paper and to paragraph 20 which reads as follows:
There will also have to be good reason to think that an interception would be likely to lead to an arrest and a conviction".
I have used those precise words in paragraph (b).
in the case of paragraph (b) of subsection (2)"—
I have said in regard to the Bill, in dealing with serious crimes—
there are reasonable grounds for believing that an interception is likely to lead to an arrest and conviction".
§ In summary, may I say this. These are the words of the White Paper: what the Government say is done, and indeed should be done in the future. There must be guidance in the Bill not only for the Secretary of State but for the tribunal as well in order to know whether, if I may put it this way, the proper rules have been carried out. I beg to move.
§ Lord Foot
I enjoy one very special advantage in the Committee on this occasion: if your Lordships care to look down the Marshalled List you will see that wherever my name appears it is immediately under that of the noble Lord, Lord Mishcon. The result is that throughout the rest of this debate whenever he speaks I shall be merely following in his footsteps. That is an advantage in one way but a disadvantage in another because the noble Lord always covers the matter so eloquently and so fully that there is nothing left for me to say when he has finished. I have been trying to dredge up something new beyond that which the noble Lord has been saying.
Of course it is perfectly true, as he has explained, that these words are those which are used by the Government in their own White Paper, and if there is any criticism to be made of them it would be that perhaps they are a little woolly and a little uncertain. However, that may not be a disadvantage. If the Secretary of State is contemplating issuing a warrant he will look first of all to the terms of subsection (2) as it stands, and he will then be required by the terms of this amendment to go on and consider the matters which are set out in the amendment.
Is it not a very good thing that this warning, so to speak, should be issued to the Secretary of State that he should not take the easy way out? It is perhaps all too easy for the Secretary of State, when he has to make these difficult decisions, to say, "Let's intercept: we can probably do best by doing that, although there may be other ways of pursuing the matter". I think that is a temptation to which, if I may say so, the Secretary of State ought not to be exposed. In addition, the Commissioner under this Bill is given certain powers which are set out in Clause 8. The words which begin that clause are these:The Prime Minister shall appoint a person who holds or has held a high judicial office (in this section referred to as 'the Commissioner') to carry out the following functions, namely—(a)to keep under review the carrying out by the Secretary of State of the functions conferred on him by sections 2 to 5 above…Therefore it is a specific duty of the independent commission to review every case in which the Secretary of State has seen fit to issue a warrant and to satisfy himself that that has all been done properly. Furthermore, when it reaches the tribunal, as the noble Lord, Lord Mishcon, was saying, they too are in duty bound to review decisions of the Secretary of State which are brought to their attention, to consider 883 all those cases where a warrant has been issued on his authority and to decide whether the action which he took fell clearly within the limitations which the Bill imposes.
If they find that the Secretary of State has not in their opinion exercised his powers properly, they are obliged to make a report to that effect and to tell the person aggrieved that that is what their finding is. Thus, on all counts, I very much hope that this amendment will receive the approval of your Lordships. It strengthens the Bill, I believe—that is, it makes clear the limitations upon the Secretary of State's powers.
§ 5.45 p.m.
§ Lord Hutchinson of Lullington
My noble friend Lord Foot referred to following the footsteps of the noble Lord, Lord Mishcon. Perhaps I might refer to following the steps of my noble friend Lord Foot. I do so entirely in an atmosphere of friendship towards both my noble friends. However, I am a little worried about this amendment—and perhaps they could help me about it—as to whether, in the circumstances of reality, it is not a little too restrictive. In this matter of interception, obviously the Secretary of State will be acting from time to time on information received from some member of the public. For instance, someone might say they were in great fear that below them in a block of flats there was activity by persons who appeared, for instance, to be speaking in Irish accents. The person may say to the Secretary of State that they were convinced, from certain conversations that they had heard, that these people were dealing with explosive substances. However, there might be no positive evidence to support those fears and it might be that, on that basis, it would merely be irresponsible not to set on foot an interception to see whether the information was in fact well founded or not. An interception might well result in clearing the matter up forthwith, and might reveal that what in fact these people were dealing with was not open and above board but had nothing whatever to do with explosives.
It would be rather ridiculous—would it not?—to have to post a number of police officers from Special Branch to hide around the house and keep observation for weeks on end in order to see whether there was any foundation to the report when an interception would clear it up in a matter of moments. Equally, it would be impossible to say before setting up the interception that there really were reasonable grounds for believing that the information was likely to lead to an arrest and a conviction. It is only that which worries me about this, because basically I would be very much in sympathy with both my noble friends.
§ Lord Denning
; I am afraid that I would oppose this amendment, too. Really, the essential words in this statute are:The Secretary of State shall not issue a warrant … unless he considers that the warrant is necessary".Those are the important words. It is not necessary, if there is equally available another means of investigation or on the other hand if it will not do any good. The crucial word in the statute is the word "necessary". As I said once before: rely on the 884 Secretary of State. I would agree entirely that provisions of this kind could go well into guidelines which the Secretary of State would consider when he was coming to his decision as to whether interception was necessary or not. Let them be guidelines, as indeed in the White Paper; but let them not be put into a statute of compelling force because then it ties the hands of the Secretary of State far too much.
Is not the position this? The matter can be inquired into if there is any debate before the tribunal and if the tribunal considered that the Secretary of State had issued a warrant when it is not necessary, then they would quash the warrant and give compensation accordingly. It is for the tribunal to consider afterwards whether it was necessary or not; and I would suggest it is not right for the statute to tie the Secretary of State's hands on what is essentially a matter for his discretion as to whether or not it is necessary. Therefore, I oppose the amendment; but let it be guidelines, if you like.
§ Viscount Whitelaw
Again, I am grateful to the noble Lords who have raised an important matter, somewhat away from what we have been discussing previously, concerning the basis on which the warrants are issued and how we define the very important word "necessary", or whether we qualify it in any way at all.
The noble Lord, Lord Mishcon, began, quite rightly, by pinning me down on the phrase and my reliance so often on the word "necessary". I do not therefore think I need go over that ground again. I stand by it absolutely. As I shall come to show him before I have finished, I am entitled, and will put myself in the position, if that is right, of being entitled to rely very firmly on this word, which I think is important.
One then comes, of course, to what the noble and learned Lord, Lord Denning, quite rightly said is the position of the tribunal, and of course of the commissioner, which will have to judge the decisions of the Secretary of State on the basis of what is put in the Bill. On the other hand, I have to look to the point that what is being suggested in the amendment is absolutely in line with the Government's own White Paper. Again, that is something which I clearly must have in mind. I have in mind, therefore, what both the noble Lords, Lord Mishcon and Lord Foot, said. I think there is a problem, and a fairly major problem, as the noble and learned Lord, Lord Denning, said, of translating the criteria employed in the White Paper into a statutory form which is capable of bearing the weight that such words would have to bear at the very heart of the legislation.
I think, perhaps, it would be right—I want to follow some things that the noble Lord, Lord Hutchinson, also said—if I gave some illustrations in the context of the amendment of the noble Lord, Lord Mishcon. It requires that a warrant should not be issued unless no other method of investigation is available, or all other methods have failed or are impracticable. I think the word "impracticable" is a very difficult word, as the noble Lord, Lord Hutchinson, indicated. In the case of a serious crime, for example, it might be possible, through painstaking detective work and given enough time to obtain information, but risks of discovery in adopting this path might be pretty high. The adverse consequences of the suspect discovering that he was 885 under investigation would, of course, be extremely serious. That is a danger and it would be irresponsible of a Secretary of State to take those risks.
Yet it is not at all clear that this alternative method, which would run these risks, would, in fact, be impracticable. It probably would be practicable. But at the same time it might actually be wrong for the Secretary of State to take the decision in that way. There are other considerations. For example, it must be clear beyond any doubt that full account can be taken of the need for urgency, which must be of the essence when it comes to preventing terrorist outrages and, indeed, other serious crimes. I can only say, without going into any detail, which would of course be quite wrong, that all my experience over four years of moments when I had to be got hold of over the question of warrants and of the speed with which they had to be considered has shown that there are many cases when speed is absolutely of the essence and that speed has actually been the basis of considerable success in many cases. It would be fatal to lose that particular requirement.
I have offered, in these examples to your Lordships, to underline the genuine difficulty which I think there is in introducing a provision which will work satisfactorily. I do not think the formula of the noble Lord, Lord Mishcon, as it stands, would actually work. Nevertheless, although I am somewhat daunted by the noble and learned Lord, Lord Denning, who says he does not think any formula of that sort can be found, I think this is an area where, when I have consulted my colleagues on this matter, we shall feel it would be right to try to see whether it is possible to find a formula which would work and which would meet the various criteria. I do not think it will be an easy task; and the noble and learned Lord, Lord Denning, might make us all think, perhaps, that maybe it will be a much more difficult task even than we have thought.
But I have felt it right, because the noble Lord put down the amendment and because it has been supported and argued, to see whether we could do this. It is, after all, founded on what is in the Government's own White Paper. In the end, it may be we shall find it is better to have it in guidance rather than actually on the face of the Bill, but I do not think that that should absolve us in the Government from trying it. Therefore, I should like to give to the noble Lord, Lord Mishcon, a reassurance that we will seek to make a genuine attempt to meet the spirit of the particular amendment that he put down and the comments that have been made. We will try our best to do so.
If we find that the noble and learned Lord, Lord Denning, is right and that we are wrong and cannot do it effectively, I will come back, honestly, to your Lordships and say so at the next stage of the Bill. But I should like to give the assurance in this particular case that, if the noble Lord will withdraw his amendment on that very clear understanding, we will do our best, although I cannot guarantee that we shall be successful. I can guarantee that if we cannot be successful, I will explain why I believe we have not been able to do what the noble Lords have asked, or something like it.
§ Lord Mishcon
I think the noble Viscount has been very gracious in his reply to this debate. I hope he will 886 not be in the slightest degree deterred by the fears of the noble and learned Lord, Lord Denning, about introducing anything into this Bill by way of an enactment as against the introduction of guidelines. Your Lordships will be familiar with previous arguments that have taken place with regard to guidelines in which the noble and learned Lord, if I remember rightly, participated. Sometimes, he said, guidelines were all right, and sometimes guidelines were not sufficient and it ought to be in the Act.
I hope that, after reading this debate and giving further consideration to it, the noble and learned Lord will think that this is one case which really justifies some sort of provision in an Act of Parliament.
Possibly, very quickly, I ought to answer the noble Lord, Lord Hutchinson. As I see it, first, if it were a case of the Irish accents that he was talking about, it would of course, be a question of national security. If it were not a case of a threat to national security but a serious crime, all that the Secretary of State is required to do is to satisfy himself, which he has to do, on the evidence then before him, that if that evidence were correct, there were reasonable grounds for thinking that a charge would follow and a conviction, and it would have to be, from his point of view, purely on the prima facie evidence that he had before him.
Having said all that, I very much appreciate the reaction of the noble Viscount. I would merely ask whether he can give an indication before Report stage of which way the Government were jumping—if I may put it that way. That would help me, and I have no doubt noble friends of mine who feel this way, as well as Members opposite, whom I also regard as my noble friends, in connection with any action that they may have to take. In these circumstances I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Mishcon moved Amendment No. 7:
Page 2, line 29, at end insert—
("( ) The warrant shall name a person as being the person responsible for the supervision of the execution of the warrant and shall state the purpose for which it has been issued with sufficient particularity.
( ) The warrant shall state the persons or classes of persons to whom material intercepted pursuant thereto or copies thereof may be transmitted.").
§ The noble Lord said: I apologise for this repetitive voice of which your Lordships in Committee must be heartily tired, but I have a certain duty to perform and I hope I am doing it to the best of my ability. In regard to Amendment No. 7, I think I can be very brief indeed. It is obviously right that the warrant should contain sufficient particulars and that these should be enumerated in the Bill, without, of course, going to the point of absurdity.
§ The first thing one ought to know from the face of the warrant, so that anybody seeing it can identify the matter, and indeed the tribunal can have it before it when a warrant is referred to it or to the commissioner, is the name of the person responsible for the supervision of the execution of the warrant. I am not, 887 of course, saying it must be the person who the whole time has to deal with the warrant, but merely the person who is supervising the execution of the warrant. It ought obviously also to state, with sufficient particularity, the purpose for which it has been issued; in other words, whether it is the detection of serious crime, a question of national security, or whatever.
Then obviously for the proper guidance and in order to see that nothing goes wrong the warrant should state:
the persons or classes of persons to whom material intercepted pursuant thereto or copies thereof may be transmitted
under the warrant, and the Secretary of State ought to say, "You can distribute copies of whatever you intercept to the following people". Then there should be nothing going wrong with what eventually happens to copies of what may be very important private documents. I beg to move.
§ 6 p.m.
§ Viscount Whitelaw
I think that I can explain to the noble Lord, Lord Mishcon, and to the noble and learned Lord, Lord Denning, some of the problems involved in this amendment. Of course, it goes again to the heart of the exercise of the warrant system and it is therefore extremely important. I think I shall be able, though I am not sure, to convince your Lordships that the amendment as suggested would have some undesirable consequences. If I take a little time to explain these, it is only because I am seeking to make clear why something that sounds on the face of it so reasonable and sensible may be either not necessary or not really desirable.
First, there is the proposal in subsection (4A) of the amendment that the warrant should name a person as being the person responsible for supervising its execution. Here I think I can assure the noble Lord, Lord Mishcon, that the purpose which he seeks to achieve is in fact already met by Clause 2(1) as it stands. Your Lordships will note that Clause 2(1) enables the Secretary of State to:issue a warrant requiring the person to whom it is addressed to intercept,etc. Thus the warrant must be addressed to a given person and, since that person is required by the warrant to execute it, there can be no doubt that the person concerned is indeed, as the noble Lord's amendment puts it,responsible for the supervision of the execution of the warrant".The second main element of the noble Lord's amendment is also found in subsection (4A) and that is the proposal that the warrant should state the purpose for which it is issued. There can be no doubt that the Secretary of State must have clearly in his mind the purpose for which the warrant is being issued, and that that purpose, and the reasons why the warrant was considered necessary in the terms of the Bill, must be clearly recorded so that they are clearly documented for the review by the Commissioner and, as the case may be, by the tribunal. If this were not done, the Secretary of State would be immediately 888 vulnerable to criticism from the commissioner and adverse findings from the tribunal. The only question is therefore whether the warrant is the right place to record the purpose for which it was issued, and I hope to be able to persuade your Lordships that it is not.
We must bear in mind that, as I have already reminded your Lordships, the warrant is addressed to the person who is responsible for executing it. When a warrant is issued to British Telecom or the Post Office, all they need to know in order to execute it is the address of the person whose communications are to be intercepted and the identity of the person to whom they must disclose the intercepted material. The purpose for which the warrant was issued is largely irrelevant to the performance of these functions, and given the need, which I am sure your Lordships accept, for a proper degree of secrecy in matters to do with interception, it would be undesirable in principle for there to be a requirement for anyone involved in the interception arrangements to be given more information than he required to carry out his particular duties. This is no more than sound security practice. We must also ask ourselves whether it is right, from the point of view of the person whose communications are being intercepted, for people who do not need to know to be told that he is, for example, suspected of being a spy, on the one hand, or a bank robber on the other.
Finally, I come to the point raised in subsection (4B) of the amendment; that is, the proposed requirement for the warrant to state to whom the intercepted material may be transmitted. I must say that I fear that this amendment would introduce unnecessary complication into warrants, and would cut across the very clear requirements already found in Clauses 2 and 6 of the Bill as regards the handling and disclosure of intercepted material. The amendment appears to be based on the premise that, at the time a warrant is issued, it is possible to foresee all the persons or classes of persons to whom the intercepted material may need to be disclosed; or at least that if material has to be disclosed to someone not initially thought of, the warrant could be readily modified to include a new category of recipients of the material.
However, in reality things are not by any means as easy as that. An anti-terrorist interception may, for example, have been granted on the application of the Commissioner of Police of the Metropolis. In those circumstances, it would be appropriate, as Clause 2 already provides, for the warrant to specify the commissioner as the recipient of the intercepted material. But what if, as is highly likely, the interception provides intelligence of possible terrorist attacks outside the metropolis—in other force areas or even in another country? Surely then the commissioner must be able to relay the information to the local force so that they can take the necessary action.
I remind your Lordships that we have already adopted a broad definition of what intercepted material and copies of it consist of so that under the noble Lord's amendment even an oral summary of the intercepted material could not be passed onto another force, unless that force was issued in the warrant, or the Commissioner went to the Home Office and asked for the warrant to be modified. I am sure your Lordships can easily imagine cases of such extreme 889 urgency that reliance on such a procedure would be highly dangerous, even if it were at all practicable. And what of the cryptic message whose significance is fully understood only after the warrant has expired, when there would be no opportunity to modify it to include new recipients of the intercepted material? It must be clear that, if this amendment were to be accepted, the temptation would be to name so many people as potential recipients, just in case such a situation as I have described arose, that the procedure would have no value and might even be counterproductive as a way of controlling and limiting the dissemination of intercepted material.
The Government believe that the right and effective way to proceed is through the strict application of the safeguards established in Clause 6, which requires adequate arrangements to be in place whenever the Secretary of State signs a warrant, and these can be either standing arrangements or ad hoc arrangements to suit the particular circumstances. I remind your Lordships that these arrangements will be subject to continuing scrutiny by the Commissioner. This will ensure that intercepted material is disclosed only to the minimum extent necessary for the purposes set out in Clause 2. I feel that this amendment would make more difficult the exercise of warrants. I have to say from my own experience in the past, though not operating under legislation, that I believe this would be so, and I would be wrong not to tell your Lordships of my own personal experience in the matter.
I hope that the noble Lord, Lord Mishcon, will study what I have said in a rather complicated area and will not seek to press his amendment now. I cannot offer any real hope, but I would quite understand if, after having looked at what I have said, he decided that he wanted to come back to the matter. I have put forward what is a rather complicated case and I think it would be better if it were studied very carefully. I hope that the noble Lord will proceed on that basis.
§ Lord Mishcon
Will the noble Viscount make me one promise; that is, that in the same way that he appears to have ignored the noble and learned Lord, Lord Denning, when he supported me, he will give consideration to ignoring him equally when he opposes me? Against that promise, I certainly intend to have a very close look at what the noble Viscount has said, to consider it very carefully and to see whether something, by way of an alternative or whatever it may be, should be brought forward at a later stage of the Bill. But at the present moment I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 2 agreed to.
§ Clause 3 agreed to.
§ Clause 4 [Issue and duration of warrants]:
Viscount Whitelaw moved Amendment No. 8:
Page 4, line 6, leave out from ("period") to end of line 13 and insert—
§ The noble Viscount said: It has been emphasised throughout proceedings on the Bill that the Government were not seeking through the introduction of legislation to broaden the scope of existing practices. The Bill allows warrants to run for six months. It has been the intention of Ministers who will exercise the powers under the Bill to make use of the possibility of renewing a warrant at any moment within that period in order that none should run for longer than they do now. The Government, however, took note of the view that there was too great a discretion on this point. Accordingly, my honourable friend the Minister of State at the Home Office in another place undertook to incorporate in an appropriate way in the Bill the arrangements for duration set out in the 1980 White Paper. This undertaking met with general acceptance and the amendment now before your Lordships' Committee gives effect to it.
§ The amendment substitutes a new meaning for the term "relevant period" in Clause 4(6). It has this effect. On first issue all warrants will have a validity of two months. Thereafter a warrant for which the criterion is the prevention or detection of serious crime may be renewed only for one month at a time. If one of the other grounds set out in Clause 2—namely, national security or the economic well-being of the United Kingdom—is a criterion for a warrant, then on renewal it may last for six months.
§ The amendment also deals specifically with those warrants which have been issued in an urgent case over the signature of a senior official following the specific decision of the Secretary of State. Such warrants will have a validity of only two working days. Their renewal within that period by the Secretary of State, which is necessary if they are to continue in force, will confer validity of two months, as will a warrant when first issued over the Secretary of State's own hand. For any subsequent renewals the one or six months' condition will apply in the normal way.
§ The renewal will be effective only if it is over the signature of the Secretary of State. There can be no delegation, and because the circumstances are different there is no need for an urgency procedure. The Secretary of State has to address himself to exactly the same factors in considering a renewal as he does when originally issuing a warrant. The test is no different or easier.
§ Two other provisions bear on the duration of a warrant. First, the Secretary of State must cancel a warrant if he considers it is no longer necessary on the grounds set out in Clause 2. Secondly, he may renew 891 it at any time during the course of its validity. He can thus have it brought forward for renewal whenever he thinks it is appropriate. These factors are important aspects of the question of duration.
§ I think it was generally accepted in another place that this is a useful provision to which we are giving effect. I am glad to commend this amendment and invite your Lordships to agree to it.
§ Lord Mishcon
As the noble Viscount has said, this amendment is based upon discussions in another place. The amendment is obviously a worthy one and we support it.
§ On Question, amendment agreed to.
§ Clause 4, as amended, agreed to.
§ Clause 5 agreed to.
§ Clause 6 [Safeguards]:
§ 6.15 p.m.
Lord Mishcon moved Amendment No. 9:
Page 5, line 6, after ("material") insert ("and that any material which proves to be irrelevant to the investigation for the purpose of which the warrant is issued is destroyed forthwith").
§ The noble Lord said: In spite of the fact that this is an important amendment, it can be very succinctly dealt with, I think. If a warrant happens to have been issued by mistake against the wrong person or address, or it is against the correct person but the material proves to be irrelevant, there is no obligation on the authorities to destroy any of the material copied. As the Bill is at present drafted, the tribunal may order the destruction of copies only if a contravention has been proved. For that I refer to Clause 7(5)(b) of the Bill. This amendment would incorporate into ordinary warrants the same safeguards for certified material under Clause 6(1)(b). I beg to move.
§ Viscount Whitelaw
I am grateful to the noble Lord who moved his amendment very shortly and very clearly. Perhaps it would be appropriate nevertheless if, in seeking to meet his point, I go through some points of Clause 6 which I think it is proper for me to put on the record.
Clause 6 is concerned with things that happen after communications have been intercepted under a warrant. It is a very different affair from Clauses 2 to 5, which deal with the warrants themselves. The purpose of the clause is to ensure that in every possible respect intercepted material is handled with particular care. I believe it is important that I should demonstrate to your Lordships' Committee that this is the effect.
The key lies in the requirements listed in Clause 6(2). They mean that only relevant portions of intercepted material may be disclosed or copied; that such material as is disclosed may go only to the minimum necessary number of people; that only the minimum necessary number of copies may be made of those portions which are disclosed; and that material may be kept only for the minimum period necessary. The essential point is that these requirements are read together. They impose a comprehensive limitation on what may be done with intercepted material.
892 These limitations are related to the purposes for which warrants may be issued, as spelt out in Clause 2. This is the right approach. The purposes underpin the whole business of authorised interception. It is they which govern whether or not it is right to issue warrants or to renew and modify them. It is against the test of continued relevance of these purposes that the Secretary of State must decide whether or not to cancel a warrant currently in force. The subsequent handling of the intercepted material—the matter dealt with in Clause 6—is rightly based on the same principle.
The arrangements necessary to give effect to these requirements will be detailed and will vary from place to place. The important thing is to ensure that they are always fully consistent with the requirements. This is where the commissioner comes in. He has it among his tasks to review the arrangements made under Clause 6 and if at any time it appears to him that they have proved inadequate in some respect or other, he is obliged—not merely allowed—to report that conclusion to the Prime Minister. It is in this way that the day-to-day implementation of the safeguards will be effectively and independently reviewed. I might remind your Lordships' Committee that in pursuit of his duties the commissioner can go where he wishes and can call for whatever relevant information he wants.
The noble Lord's amendment is particularly concerned with the destruction of irrelevant material. There is of course bound to be irrelevant material. It was accepted as far back as the Birkett Report that the interception of a telephone line was likely to lead to the interception of conversations quite unconnected with the matter in hand. I believe, however, that the Clause 6 requirements deal very adequately with such material. If the intercepted conversations are those of members of the family of the person against whom the warrant is directed or are about things entirely unconnected with his criminal activities, their disclosure, copying or retention might not be necessary for the purposes set out in Clause 2 and they could not be made use of. This is what happens at the moment, as was made clear in the report produced, as monitor of interception arrangements, by Lord Diplock in 1981. This is what will happen under the statutory scheme. If they cannot be disclosed, copied or kept, they must be destroyed.
I do not believe, therefore, that there is any difference of objective between the Government and the noble Lord. There is, however, one aspect of his amendment which I am afraid renders it unacceptable as it stands. He ties his requirement for the destruction of irrelevant material to the "purpose for which the warrant is issued". Let it be supposed that the warrant has been issued in order to prevent a major robbery. What, then would happen if, quite by surprise, one of the intercepted calls revealed that people unconnected with the robbery were shortly to set off a bomb? The amendment would mean that this information had to be destroyed. The noble Lord does not of course intend this, but I fear that I am advised that his amendment would achieve it. The same point would apply if "purpose" meant the relevant Clause 2 criterion: a warrant issued on grounds of national security unexpectedly produces vital and urgent information on a crime, and that information has to be destroyed forthwith.
893 I hope the noble Lord will see, therefore, that his amendment as it stands is not acceptable, even though he and the Government are at one on the need for irrelevant material to be destroyed. The noble Lord has done a most valuable service by highlighting the fact that the clause as it stands does not refer expressly to destruction, although as I have said there is absolutely no doubt that it secures destruction in the appropriate cases. I accept that this is something which could be made clearer, and I am therefore very ready to undertake to bring forward a Government amendment which achieves that end. On this very firm basis, I hope the noble Lord will feel he need not press his amendment.
§ Lord Mishcon
This noble Lord is indeed very grateful to the noble Viscount for what he has promised to do. On the basis of that promise, I am more than happy to beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 6 agreed to.
§ Clause 7 [The Tribunal]:
Lord Mishcon moved Amendment No. 10:
Page 5, line 38, leave out ("5") and insert ("6").
The noble Lord said: Again, I can be very brief. With the leave of the Committee, I shall speak also to Amendments Nos. 12 and 14.
Amendment No. 12: Page 5, line 41, leave out ("5") and insert ("6").
Amendment No. 14: Page 6, line 18, leave out ("5") and insert ("6").
Under Clause 7 of the Bill the tribunal is given the task of seeing
whether there is or has been a relevant warrant or a relevant certificate
and then, in subsection (3)(b),
where there is or has been such a warrant or certificate, whether there has been an, contravention of sections 2 to 5 above in relation to that warrant or certificate".
There happens to be a very important Clause 6 of the Bill which deals with very material safeguards. Quite obviously, these, too, are matters to which the tribunal should have its attention directed; they should be within the remit of the tribunal. At the present moment they are not within the remit of the tribunal. They should be. I beg to move.
§ Viscount Whitelaw
I am grateful to the noble Lord for raising these important matters about the position of the tribunal. He addresses the question of a remit to the tribunal. Though it is clearly for the convenience of your Lordships to consider these amendments together, a number of different issues arise. I should like to examine those dealing with Clause 6 separately from that concerned with reporting the possible commission of a new interception offence.
The Government entirely accept that these arrangements are important. That is why they have gone to such pains to describe them in Clause 6. They must also be the subject of supervision. That is why the remit of the commissioner expressly extends to them. Under Clause 8 he is required (and not merely 894 allowed) to report to the Prime Minister if he concludes that the arrangements made for these purposes are inadequate. He is clearly the person best-equipped to keep an eye on them. The commissioner conducts a continuing review of the whole system of authorised interception, examining what he wishes to examine and having access to any relevant material that he wishes to see. His discretion to go where he likes and see what he likes that is relevant to his task is complete. Through the experience he will build up, he will be supremely well-equipped to decide for himself whether things are working as they should or whether, for example, they ought to be done rather differently in some office, or that a particular decision he has examined in detail was a bad one.
The tribunal has been created to provide a remedy in circumstances where the Secretary of State has taken a wrong decision under the legislation in respect of his warrant powers. It has a precise decision to address. It can receive an application, determine whether there is a relevant warrant and then, if there is, review the decision taken at the time of its issue and any subsequent ones that there may be. Its task, as your Lordships have recognised, is akin to that of a court and it is expressly required by the provisions of Clause 7 to apply the principles applicable on judicial review. There is a direct link between the application to the tribunal, which is what triggers it, and its process of review.
This does not apply in the case of Clause 6. The tribunal has nothing to address as a consequence of its receipt of an application. In effect, all that it would have before it would be the very extensive arrangements to safeguard the material. But these arrangements, as I have said, are given practical effect in a whole variety of different circumstances by a wide range of people. Put simply, the tribunal has nothing to bite on, as it does with Clauses 2 to 5. This is not merely a matter of practical convenience or administrative tidiness. The tribunal is of fundamental importance in providing people with a remedy and in ensuring that the system as a whole is able to command public confidence. If the tribunal is given a task which in practice it could not carry out—as I believe would be the case with these amendments—the result would not be to enhance its role but to detract from it.
I have set out at some length to your Lordships why I believe the provisions for the tribunal set out in the Bill before us are adequate, and why I believe that to extend the remit to Clause 6 would carry with it serious practical disadvantages which would detract from the value of the tribunal, to which the Government attach the utmost importance. I hope once again that the noble Lord will consider what I have said and will return to this point if he wishes to do so. But I am afraid that at the present time I cannot offer to accept his amendments, and I ask him to withdraw them.
§ 6.30 p.m.
§ Lord Mishcon
For the very first time the noble Viscount has disappointed me in regard to his reply. I want very briefly to say why I regard this matter as being one of principle. I believe that those who have 895 associated themselves with this amendment may feel the same.
It is perfectly true that the tribunal is given very definite powers and duties under Clause 8. If your Lordships will refer to the order it can make, which is contained in Clause 7(5), your Lordships will see the following:An order under this subsection may do one or more of the following, namely—(a) quash the relevant warrant or the relevant certificate".I am not pretending that that would be a relevant matter to the amendment I am moving, but paragraph (b) states:direct the destruction of copies of the intercepted material or, as the case may be, so much of it as is certified by the relevant certificate".Paragraph (c) then states:direct the Secretary of State to pay to the applicant such sum by way of compensation as may be specified in the order".The commissioner cannot give any compensation and the commissioner cannot order that there should be a destruction of copies. I ask your Lordships to look at Clause 6 which the noble Viscount says is removed from the remit of the tribunal. Subsection (2) states:The requirements of this subsection"—that is, the requirements as to what the Secretary of State should or must do—are satisfied in relation to any intercepted material if each of the following"—I now skip words in order to make the matter clear—is limited to the minimum that is necessary as mentioned in section 2(2) above".What is limited to the necessary minimum? It is:
Let us take a case referred to the tribunal where there has been a warrant. Although the Secretary of State may have been justified in issuing a warrant on the information before him, the tribunal finds, if it is allowed to do so, that he was quite wrong in what he did about the extent to which the material was disclosed; that it had been disclosed to a number of people to whom it should not have been and that the Secretary of State was not careful about that. The party who has complained about the interception has found that, although a warrant was issued, and issued correctly, he was a perfectly innocent party and the Secretary of State has erred in this connection. He has erred in regard to the extent to which the material is copied; or he has erred in regard to the number of copies made of any of the material; or he has erred in regard to the period during which copies of the material are kept.
- "(a) the extent to which the material is disclosed;
- (b) the number of persons to whom any of the material is disclosed;
- (c) the extent to which the material is copied;
- (d) the number of copies made of any of the material; and
- (e) the period during which copies of any of the material are kept,"
The tribunal, finding all these things, is then prevented from giving any compensation to the member of the public whose communication has been intercepted in this way. The tribunal is powerless because it is limited to Clauses 2 to 5, and Clause 6 is not within its remit. There will be no compensation from any court because the member of the public cannot go to a court; and there will be no remedy 896 against the commissioner. The commissioner is not entitled to do anything by way of awarding compensation and the tribunal is rendered powerless, although it finds that the safeguards have been negligently or wrongly carried out by the Secretary of State.
I am afraid that this is a principle to which the noble Viscount, unusually for him, did not address himself at all. As he has given no answer to my amendment I am afraid I must press it, unless he can accept it.
§ Lord Denning
When the amendment was moved I thought that it was unanswerable, but having heard what the noble Viscount said I came to the conclusion that the Government are right because it depends on the jurisdiction of the tribunal. That is given in Clause 7(2). A person who believes that communications have been intercepted improperly, and so forth, may apply. There is no jurisdiction in the tribunal to deal with anything other than the validity of the warrant. At all events, it seems to me that it cannot deal with the various safeguards after copies have been taken. Therefore, although it is a nice point, I go with the Government.
§ Viscount Whitelaw
I believe I have not done your Lordships as well as I would wish in answering this point. The noble Lord has been very generous to me on other occasions and agreed to take back what I have said to read it; so may I have the same privilege, in reverse, and have the chance to take back this amendment carefully to study what he said? Of course, I would have to do so without commitment.
I am grateful to the noble and learned Lord, Lord Denning, for his support but I do not believe I have quite managed to capture the real point which the noble Lord has put to me. That is my fault, and certainly not the fault of the noble Lord. Therefore, I am prepared to take responsibility for it and agree carefully to read what he said and come back at a later stage.
§ Lord Mishcon
On behalf of the profession to which I have the honour to belong, I could wish that the noble Viscount had been a member of it, because he would have been a most distinguished member in view of the gentle advocacy which he has just practised. Obviously it would be discourteous of me to resist it. However, will he permit me, only so that the matter can be properly investigated—because it deserves it—to answer the noble and learned Lord, as he knows I always do most respectfully?
§ Lord Mishcon
It was, if I may say so, off the wrong cuff on this occasion. I say that for this reason. The noble and learned Lord had not noticed that there was also an amendment to which I spoke in regard to Clause 7(3), which reads:On such an application … the Tribunal shall investigate".My amendment would amend paragraph (b) of that subsection to read:where there is or has been such a warrant or certificate, whether there has been any contravention of sections 2 to 6 above in relation to that warrant or certificate.897 Therefore, if my amendment had been carried the tribunal would have been given the job of seeing whether or not the question of distribution, and the rest of it, had been properly carried out by the Secretary of State.
§ Lord Mishcon
; The noble and learned Lord is always most gracious in the way that he accepts any corrections. The corrections have been rare during his lifetime, although they have been given from time to time by your Lordships' House. Having said that, and in view of the very gracious words of the noble Viscount, it would be wrong of me to press the amendment at this stage. I believe he is seized of the fact that this is an important point to which his earlier remarks were not an answer. In the circumstances I ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Mishcon moved Amendment No. 11:
Page 5, line 39, leave out from ("Tribunal,") to ("an") in line 40, and insert ("sitting as if they were a court dealing with").
The noble Lord said: Here I am going to seek, if that is permissible in your Lordship's Committee, a contribution from the noble and learned Lord, Lord Denning. He will correct me if I am wrong and I shall accept it, as I would from the noble Viscount if he proved to my satisfaction that I was wrong. I think the draftsman has made a mistake, and has done so in rather an important matter. I ask your Lordships to refer to Clause 7(4), on page 5, line 39, of the Bill. This states:
If, on an investigation, the Tribunal, applying the principles applicable on an application for judicial review".
I am imagining the tribunal considering its duties under that from time to time.
No rules of the Supreme Court are referred to. One does not know whether it is supposed to look at those principles, and it is a mandatory matter. It has to apply:
the principles applicable on an application for judicial review".
Is it a question of some legal precedents that it has to look at as well?
What I believe the draftsman meant to say—otherwise to me as a lawyer the words are absolutely meaningless and may, indeed, vary periodically in view of judicial decisions that are made from time to time—is what has been put in the amendment. The tribunal is to treat itself as:
sitting as if they were a court dealing with",
a judicial review. I should have thought the matter then becomes clear as to what its duty is. I look anxiously at the noble and learned Lord to find out whether he agrees with me or disagrees. He knows, as I have said, that I shall treat his reply, if he intervenes, with every respect. I beg to move.
§ Lord Denning
I quite agree with the amendment in this way. The tribunal cannot exercise any jurisdiction for judicial review. The position is that the High Court, under our new procedure, can correct any misdoings of any inferior tribunal or other body, even the Secretary of State, if they go wrong in any way. 898 That is for the High Court to do. The tribunal has no power in that respect. It would be much better to put in:sitting as if they were a court dealing with",judicial review, or words to that effect. That brings in the same principles for the tribunal to exercise as the High Court would do if it were exercising jurisdiction over any public authority. I think that the amendment is probably right.
§ Viscount Whitelaw
Faced with that formidable combination so cleverly brought together by the noble Lord, Lord Mishcon, I think that what I shall seek to do is to explain the position as the Government understand it at the moment. I have to say that we were anxious to discover exactly the purpose behind the amendment. So I should just like to set out why I think that it is difficult for us but at the same time why I realise that the matter has to be carefully considered.
It was argued during the early proceedings on this Bill in another place that the tribunal was not empowered to consider whether on the material available to the Secretary of State his decision to issue a warrant was justified. It was further argued that the tribunal was simply a rubber stamp, concerned only with matters of detailed procedure. It was suggested that, because under Clause 2 the task of the Secretary of State was to consider whether a warrant was necessary on one of the specified grounds, the tribunal had no job to do so long as he did indeed consider that. This would of course have deprived the tribunal of any role, however absurdly or outrageously the Secretary of State might have behaved. The result of this interpretation would clearly have been that there was no effective remedy.
In the White Paper published in February, and at all subsequent stages, the Government have emphasised that they wish the tribunal to be an effective remedy, as indeed is required by the European Convention on Human Rights. It was the clear intention that the tribunal should be able to decide whether an interception was properly authorised, in the sense of whether the material placed before the Secretary of State was such that he could properly have come to the conclusion that it was within the specified criteria. It was also stated that the jurisdiction of the tribunal would be analogous with that of a court hearing an application for judicial review. Though the Government believed this result to be achieved by the Bill as originally introduced, to put the matter beyond any doubt whatsoever it was changed in another place by adding to Clause 7(4) the phrase,applying the principles applicable on an application for judicial review".This made it absolutely clear that the tribunal would decide whether on the facts available the decision to issue a warrant was a proper one in the sense that it was not unreasonable. This is at the heart of the process of judicial review and is what the tribunal should be about.
Against that background I should like to turn to the actual terms of the noble Lord's amendment. He has explained it very clearly and gained the support of the noble and learned Lord, Lord Denning, for that. I am grateful to him for the way he set it out, because, as I said at the start, the Government were not quite sure 899 when we looked at it in the first instance what the noble Lord was seeking to do.
The noble Lord asks us to look on the tribunal,as if it were a court"—the words of the amendment. I must say to him that I do not see how we can. I dwelt at some length during the debate on the Second Reading of this Bill on the need for secrecy in relation to the proceedings of the tribunal, as in other respects. I believe there was a general agreement among your Lordships that secrecy of this kind, though exceptional, was absolutely necessary in the special circumstances of interception. It cannot be the case that application to the tribunal, which must be open to anybody without restraint, could lead to discovery of whether or not there is a warrant or the grounds on which it was issued. Hence, there are limitations imposed on the tribunal about the disclosure of information without the agreement of the person from whom it has obtained it, about the terms in which it responds to applicants, save where there has been a contravention of the Act, and about giving reasons for its decisions.
The tribunal may be the alternative to an ordinary court, but it is not like one. In a court the public are normally admitted. Even if the proceedings are in camera nothing said by one party can be hidden from the other. There are detailed rules of procedure established over the years and applicable to the courts, but surely they are irrelevant to a special tribunal of this kind necessarily sitting in secret. I have to say to the noble Lord that I cannot see how a reference to the tribunal sitting as if it were a court would therefore work or is consistent with the other provisions in the Bill about its procedures with which I had hitherto understood him to be content.
I believe that the formula we now have before us in Clause 7(4) works entirely satisfactorily. It says the tribunal must apply the principles of judicial review, and that is what I believe we all want it to do. I fear that as it stands this amendment would confuse and not clarify the role of the tribunal. I hope that I have given some reasons which may perhaps make both the noble Lord, Lord Mishcon, and the noble and learned Lord, Lord Denning, think again about the precise way in which the tribunal has to work in the circumstances.
§ Lord Denning
It is all a question of drafting, I think we would agree. As to the objective that I think my noble friend wants to achieve, we want the tribunal to be able to quash, modify or whatever the decision of the Secretary of State. In doing that it can consider whether or not it is reasonable or whether it is in accord with natural justice; in other words, all the ordinary principles which the High Court applies. It is only a matter of wording to see whether we have it right. It may be that the present wording does it—on an application for judicial review".I think that it would be a good thing to look at the actual wording to see whether it achieves the objective. I think that we had better look at it again.
§ Lord Mishcon
I think that the Court of Appeal has varied the decision which it made a few moments ago, and the Court of Appeal has the power to do that provided that it is at the same sitting.
I say just a word or two only so that we can properly consider what is a very important provision in the Bill because it governs the way in which the tribunal will sit. I say this with all deference, but I think that there is some confusion in the minds of those who may have advised the noble Viscount. In this amendment I am not of course in any way upsetting the idea of the tribunal sitting in camera. I in no way seek to have the right of representation before it in the normal sense. I in no way seek the right of parties to appear before the tribunal in the way that the noble Viscount intimated. That was not my intention at all.
What I was trying to do was this. If I may say so, those advising the noble Viscount have really brought an argument upon their own heads. If they say that my amendment means that if a body sits as a court dealing with an application for judicial review, then one has to have people present and one cannot have the whole hearing in camera. Natural justice would dictate on an application for judicial review that one heard representations and evidence, and so on, so they must be wrong in thinking that the words in the Bill fulfil what they want. That is because if they say that those are the normal principles applicable on an application for judicial review before the courts—namely, that all parties have the right to be heard—they are caught by those very words in the Bill because a tribunal has to apply the principles applicable on an application for judicial review. Thus in language that the Committee may be used to in various debates before it, they are, as it were, in an uncomfortable position with their own petard.
Having said that, the sole purpose of my amendment is to achieve clarity. I do not in any way oppose a word that the noble Viscount has said in regard to the procedures to be conducted under the Bill before the tribunal. I am merely saying that the words are meaningless in a statute. They lack particularity. They can vary from day to day. There may be contrary principles expressed in judicial precedents. There is no reference to the Rules of the Supreme Court governing a matter of an application for judicial review. The words,applying the principles applicable on an application for judicial revieware, in my humble submission, words which should not appear in a statute because they are bad drafting, because the tribunal is not certain as to what it is supposed to do.
However, if one tells the tribunal that, subject to all the matters the noble Viscount has spoken of, it is deemed to consider itself to be sitting as a court of judicial review, in the sense that it has to decide what is reasonable in the circumstances, whether the rules of natural justice have been observed, then I think the tribunal will know what one is talking about.
The noble Viscount has spoken very graciously. His way of conducting the Committee stage of this Bill is, if I may say so, an example to us all and I hope will be an example to others who sit on the Front Bench when dealing with other legislation.
§ Lord Mishcon
For the first time I have had acclaim for something that I have said in the course of the conduct of this stage of the Bill and I am delighted. However, the noble Viscount has said that this obviously should be considered. The noble and learned Lord has said that it is a question of drafting and one ought to give proper consideration to what has been said. In the circumstances, I beg leave to withdraw the amendment, upon the understanding, which I think we all have, as to what we want to do in regard to this amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 12 not moved.]
Lord Mishcon moved Amendment No. 13:
Page 6, line 2, 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—
§ The noble Lord said: I hope that I can be as brief in regard to this amendment as I hope I have been in regard to the last few amendments. One knows perfectly well that the tribunal has no investigative arm. Therefore it was reasonable for the tribunal not to be given the burden, under this Bill, of seeing whether or not anything had gone wrong in regard to interception, where a warrant had not been issued. For that purpose, it would require an investigative arm. That is a matter normally for the police to investigate.
§ However, under this Bill as it stands at the moment, where the tribunal happens to find, when investigating a complaint made to it by a member of the public, that an offence under Clause 1 looks as though it has been committed, under this Bill at the present moment it has no duty and indeed no powers. It must be right that where it happens to find that such a thing has occurred, it should give notice to the applicant stating that conclusion; namely, that an offence under Clause 1 may have been committed and that it also should make a report to the Secretary of State. Otherwise, the member of the public, quite wrongly, will never know about this matter, will never be able to put matters before the police because he will not have the facts. The tribunal, by chance it may be, has found out that there has been this contravention. Surely, the member of the public ought to be protected in those circumstances by the tribunal giving notice to the applicant of its conclusion and making a report to the Secretary of State so that the Secretary of State can take action if he sees fit. I beg to move.
§ Viscount Whitelaw
We looked at one aspect of the tribunal a moment ago on the noble Lord's other three amendments. Perhaps I should say in answer to him, when he kindly withdrew the amendment, that I think I would have replied to him that now at least we all start from understanding what we are all driving at. I am not sure that we did do that, when we started. Thus on the previous amendment I think we have made considerable progress in knowing exactly where we were seeking to go.
902 This amendment addresses a different aspect of that task. I will therefore not detain the Committee by repeating what I said about the purpose and manner of the workings of the tribunal, which I must say I noted from the noble Lord he felt generally in agreement with me about.
This amendment does two main things. First, it places an obligation on the tribunal to inform the applicant if it considers there may have been a Clause 1 offence. If it did have this suspicion, the tribunal would of course behave responsibly, It would have obtained this information only from the applicant since its further inquiries are only directed at the Secretary of State as to whether there is a relevant warrant. It is not therefore inhibited by its terms of reference from reminding the applicant of his right to approach the police in connection with a criminal offence, and indeed of telling him that in its view he would be well advised to do so. A body of the stature and experience of the tribunal does not need to be told what to do in this kind of circumstance.
The amendment, however, goes a good deal further. It requires the tribunal to report its suspicions of an offence to the Secretary of State. The Secretary of State is a Minister of the Crown. He is not concerned and must not be concerned with the investigation of individual criminal offences. His responsibilities for the criminal law are of a broader kind, relating in the case of the Home Secretary to the adequacy of resources and the nature of the criminal law. It would be quite wrong for the Home Secretary, for example, to receive reports on suspicions about individual offences. His locus in relation to the new interception offences is not in principle different from that in relation to any other offence. He could do nothing with the reports he received from the tribunal. He could not in any way be thought ever to interfere in their proper investigation by the police. And his wider responsibilities are in no way served by what would be no more than occasional information, since material reaching him from the tribunal would at best be spasmodic. If—as might well be the case—he needed a general picture of the commission of the new offence and its enforcement, he would obtain that comprehensively by making a general inquiry of the police service as a whole.
I must point out one other matter. There might be a case where the tribunal had reviewed a warrant and found all in order, but where it was also apparent from the application that there might have simultaneously been an unlawful interception of the same telephone, say by a private detective. The amendment does not meet this situation. Indeed, I do not see how it could do so. The end result in this respect is at least anomalous.
I think therefore that I should sum up the Government's view on the noble Lord's amendments in this way. As to telling the applicant, there is nothing to stop it doing so now if it suspected there had been an offence. I do not believe a group of people of this kind should be obliged to. As to telling the Secretary of State, I think that is wrong, and could lead to just the wrong kind of suspicion about his involvement in the investigation of offences, from which he must at all times be separate, and be seen to be separate. Having lived the life of Home Secretary for four years, I utter 903 those last words with a great deal of very strong conviction indeed. I hope that the noble Lord will take notice of them.
§ 7 p.m.
§ Lord Mishcon
I not only take notice of them: they have registered on my mind with great emphasis. I wonder, however, whether the noble Viscount can help me in this regard. If he can, then I propose to take a certain course, which he can anticipate. I wonder whether he can give an assurance or, if he feels that to be wrong (because I have given him no notice of this), at least to consider favourably the suggestion that guidelines could be given to the tribunal saying that if they find that there has been an apparent contravention then suitable guidance can be given to the applicant. We would not then need necessarily to have it in the statute, because I take some of the things that the noble Viscount said.
What many people are frightened of is that the tribunal, without guidelines and without this provision in the Act, will say that although they can see a contravention of Section 1 no-one, obviously, wants them to do this, and in those circumstances they will not tell the member of the public or give him any guidance. I recognise that this may be unlikely. If, however, the noble Viscount can say that in those circumstances guidelines will be given to the tribunal it is obvious that, in the exercise of their proper discretion, they could well be expected to carry out what I have tried to incorporate in the amendment.
§ Viscount Whitelaw
I am grateful to the noble Lord. I was, of course, addressing myself, I think properly, to the amendment, which involves actually putting something on the face of the Bill. I come back to the remark made by the noble and learned Lord, Lord Denning, that sometimes guidelines are better than putting something on the face of the Bill. 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.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 14 not moved.]
§ Clause 7 agreed to.
§ Clause 8 [The Commissioner]:
Lord Mishcon moved Amendment No. 15:
Page 7, line 19, leave out subsection (5) and insert—
("(5) If at any time it appears to the Commissioner that there has been a contravention of sections 2 to 6 above which has not been the subject of a report made by the Tribunal under section 7(4) above he shall refer the matter to the Tribunal for investigation under that section.
(5A) If at any time it appears to the Commissioner that any arrangements made for the purposes of section 6 above have proved inadequate he shall make a report to the Prime Minister with respect to those arrangements.").
§ The noble Lord said: Again, I believe I can move this with some brevity. The present state of the Bill, as I see it, means that the procedures for investigating contraventions are inadequate. The tribunal will only be able to investigate complaints by the public—that will be under Clause 7(2)—and there is no obligation on the commissioner, or indeed on the Prime Minister, to inform the tribunal of contraventions found by the commissioner. The person whose communication has been wrongly intercepted may never know or suspect this. As such contraventions cannot be considered by the ordinary courts, as Clause 9 at present provides, there should obviously be an obligation on the commissioner, we think, to refer all contraventions to the tribunal.
§ This amendment would ensure that. It would also require the commissioner to have regard to the safeguards in Clause 6 in deciding whether there has been a contravention. At the same time, the commissioner would only report on the adequacy of the safeguards to the Prime Minister, as the Prime Minister will receive reports from the tribunal of its finding of any contraventions. That would be pursuant to Clause 7(4). I beg to move.
§ Viscount Whitelaw
Once again, the noble Lord, Lord Mishcon, has moved his amendment very succinctly. Nevertheless, it is important, as we come to the various important roles of the tribunal, that I refer to some of the points surrounding the amendment at somewhat greater length. I think, in the circumstances, that it is inevitable that I should do so.
The Bill establishes a clear distinction between the functions of the commissioner and the functions of the tribunal. The commissioner undertakes a continuing review of everything to do with authorised interception, both the actions of the Secretary of State personally and also associated procedures and arrangements whereby applications are made to him, advice is given and action is taken to execute warrants and to secure the material they produce. The commissioner is his own master. He can call for any documents or information relevant to his task, and they must be given to him. He decides where he wants to go and who he wants to see. He thus ranges freely in pursuit of his statutory duties. This freedom of action is vital.
The tribunal is entirely different. It is triggered only by an application. It has precisely defined duties in respect of an application and has specific powers enabling it to overturn the decision of the Secretary of State and to provide an effective remedy if it concludes there has been a contravention. Its process is therefore one of formal investigation—your Lordships will note that that is the word in the Bill—as distinct from one of free-ranging review, as with the commissioner.
If the commissioner finds what he thinks to be a contravention—and that is not to say it is a contravention in the sense that it has been subjected to a formal investigative process and that a conclusion to this effect has been reached by a legally qualified tribunal—he is obliged to report that opinion to the Prime Minister. It is not more than his opinion. The 905 commissioner's annual report will survey everything he has done during the course of the year and will therefore naturally embrace any ad hoc reports that he might have made during the course of the 12 months. Among the issues which he is bound to address in his annual report is the action taken in response to matters he had commented on earlier.
Given the stature and independence of the commissioner as constituted under the Bill, failure by the Government to take appropriate action can be assumed to be a matter which the commissioner would comment on in his annual report. It can be seen from this that there is no possibility of an interception continuing in circumstances where the commissioner thought it was inappropriate. To suggest otherwise would be quite unrealistic. Frankly, no Government would countenance the situation of being publicly reprimanded by the commissioner for failing to act on his advice. It should be noted that there are no grounds for excluding from the published version of his annual report a suitably framed reference to a matter of this kind. The consequence therefore of the commissioner reporting that there had been a contravention, is, it seems to the Government, bound to be that the interception would be immediately discontinued.
It is perfectly natural for your Lordships to assume on first inspection of Clause 8 that where the commissioner has discovered a contravention the tribunal should be able to give a remedy to the person who is the subject of the offending warrant. Unfortunately, it is not that simple. The jurisdiction of the tribunal is based on judicial review and it is not for the tribunal to substitute its views for those of the Secretary of State, but rather to see whether he has acted unreasonably. The commissioner will be far more effective if he draws attention to cases where he believes that something has gone wrong with the system. He should be able to report to the Prime Minister cases where the Secretary of State acted properly but where subsequent events have cast doubt on the reliability of the sources of information on which the Secretary of State acted, so that greater accuracy can be achieved in future. He should be able to question the wisdom of the issue of particular warrants without disputing the lawfulness of the Secretary of State's decision. If the necessary consequence of reporting his disquiet about a particular warrant is that the fact that the warrant was issued becomes public knowledge (because through the tribunal the persons involved have to be informed) the commissioner might seek to minimise the damage to the system of interception by limiting his criticism to where he is satisfied that the issue of the warrant was beyond doubt unreasonable.
The acute problems which could arise can be seen by examining a hypothetical example. A warrant could have been properly issued in respect of a terrorist staying in rented accommodation but a blunder could have led to a request to the Secretary of State to renew the warrant after the terrorist had moved out and a perfectly innocent person had moved in. The blunder could have been discovered very shortly afterwards and the warrant cancelled.
The commissioner might well wish to suggest an improvement in the system to avoid similar mistakes, though I must emphasise to your Lordships that I 906 believe the arrangements which already exist can prevent just this kind of thing. If the commissioner is required to notify the tribunal, which in turn notifies the persons concerned, we have two unfortunate results. First, there appears to be a duty to try to notify the terrorist, even though it may make it less likely that he will be caught once he knows that he is under observation. Moreover, the terrorist has to be notified even though in respect of him the original warrant was perfectly satisfactory. Secondly, the new occupant of the flat is in the bewildering position of discovering that he has got caught up in something he cannot understand or discover much about, and that he has a right to a remedy before the tribunal.
There are further practical aspects of these matters which your Lordships will also wish to consider. The amendment requires the commissioner to refer the matter to the tribunal for investigation. It does not go on to say how the tribunal is to proceed when at that stage no one has been identified as specified or described in the warrant, or as residing or working at premises with the address specified in the warrant. Presumably, it is intended—and I have assumed this for the purposes of the hypothetical example I have just given—that the tribunal should discover these persons and inform them so that they can be regarded as applicants for the purposes of Clause 7. But how does it do this? How can it discover who lived or worked at the premises? How can it discover where the person named in the warrant now lives if he has moved? Is it to advertise in the press?—a prospect which I am sure will not commend itself to your Lordships. In asking these questions I am not simply seeking to throw sand in the eye in order to evade the main issue. They are real practical questions which must not only be asked but answered before the notion contained in this amendment can be given real effect, however attractive it may appear on first sight.
I have spent some considerable time on this amendment, but I think it is important for your Lordships' Committee to have some of the background. I do not believe that noble Lords would wish some of the results that I have outlined to come about. The Government certainly do not. I hope that the noble Lord will consider very carefully what I have said because I do not believe that his amendment would give him the result he wants. I fear it might produce some results which he really does not want.
§ Lord Mishcon
Perhaps I may at once say that there are aspects of this matter, which have been outlined by the noble Viscount, which had not occurred to me at the time I tabled this amendment. I should like to consider them and, therefore, I beg leave to withdraw the amendment at this stage.
§ Amendment, by leave, withdrawn.
§ Clause 8 agreed to.
Lord Donaldson of Kingsbridge moved Amendment No. 16:
After Clause 8, insert the following new clause:
§ ("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—
- (a) to investigate any complaint made to the Complaints Commissioner by a member of the Security Services in
907 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
- (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,
- (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: For once we come to an amendment not moved by the noble Lord, Lord Mishcon. His advocacy, supported by the excellent briefs of Justice, has not required any help from these Benches, and we have been unusually silent. However, on this occasion my noble friend Lord Harris of Greenwich tabled this amendment, which he anticipated in his Second Reading speech, but unfortunately he is under an obligation to be elsewhere and so he asked me to put it forward on his behalf.
§ It is a follow-up to a suggestion of Sir Edward Gardner's during the Committee stage of the Bill in another place. Admitting, as, alas, we all have to, that over the last few years there have been what the noble Viscount described as "some very unfortunate and worrying lapses" in the working of the security services, it seems a pity not to use the opportunity of this Bill to add a safeguard against further incidents of the kind. Sir Edward suggested that there should be an independent complaints commissioner, independent of MI5 and MI6, who could be approached by members of those two organisations if they believed that some improprieties were taking place.
§ My noble friend quoted the Massiter case, where Miss Massiter, as a working member of the security services, alleged that there had been a deliberate and intentional breach of the Maxwell Fyfe guidelines by fellow members of MI5. We do not know whether or not this was true; we have heard no more about it. But such allegations should be independently investigated.
§ Some individuals in this dangerous and difficult trade may get carried away into excessive action and, without this amendment, they will tend to fall back on the very unsatisfactory method of leaking to the press. There is no safeguard against this, except their colleagues, as no one else can know what they are doing. We think Sir Edward's suggestion a wise one, and this amendment is an attempt to put it into the Bill. The noble Viscount spoke not unsympathetically about this and I hope that at least he will give this amendment his fullest consideration. I beg to move.
§ 7.15 p.m.
§ Viscount Whitelaw
As the noble Lord, Lord Donaldson, has said, the amendment before your Lordship's Committee is in identical terms to that proposed by my honourable friend the Member for Fylde in another place. The issue is whether the present arrangements for the management of the security services, and in particular for the expression of concern by its members, are adequate. Associated with it are questions of the role of Ministers as those ultimately responsible for the accountability of the service.
908 The position of the Government has been placed on the record on a number of occasions in the last few months. Particular occasions were the debate on the Second Reading of this Bill in another place in the middle of March and the Statement by my right honourable friend the Prime Minister on 9th May about the report of the Security Commission, which I repeated to your Lordships. 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. This responsibility is a heavy one for the Minister concerned, as I myself can vouch from my own personal experience over a period of four years. It is a responsibility taken extremely seriously, whereby the Secretary of State satisfies himself that the security service operates not only within the letter of its directive but also within its spirit. Moreover, this is a continuing duty exercised throughout the Minister's term of office in conjunction with his most senior advisers; there is no question at all of this responsibility being discharged with a quick signature on his first day in office. He is kept informed and considers issues throughout that period. The legislation before your Lordships in no way changes this situation, though the Government believe that the proposed statutory scheme will give grounds for added assurance to members of your Lordships' House and to the public at large that interception is used only where it is necessary.
My right honourable friend the Prime Minister reaffirmed this position in exchanges following her Statement early last month. She emphasised that all Governments of all parties have run the security service in the same way and on the same lines, believing when in power that that is the best way to do it. It is also relevant in this context, as your Lordships will recognise, that the Security Commission's report on the Bettaney case in no way addressed this wider question, and had no comment upon it.
The second issue raised by this new clause concerns the responsibilities of the management of the security service. I must state very clearly to your Lordships that the Government believe this new clause cuts across managerial responsibility. It is the task of the Director General—as it is the task of the senior management in any organisation—to support and guide the staff in carrying out their functions. In the case of the security service this clearly includes firm direction and clear guidance in relation to the day-to-day implementation of the directive. It is an important part of management's function in any organisation to listen carefully and sympathetically to any member of staff who puts forward reasonable concerns about his work in the proper and responsible manner. Moreover, in discharging his reponsibilities towards the security service, it is the responsibility of the Home Secretary of the day to satisfy himself that in this respect as in all others the system is operating properly and management is discharging its proper functions. There is nothing new about any of this; it is a matter of long-standing practice.
That said, my right honourable friend the Prime Minister indicated in her Statement that the Government appreciated the concern which had been 909 expressed about the handling of members of the service who were troubled over particular matters or activities. I should like to emphasise to your Lordships today that this is not simply a ritual comment; the view has been clearly expressed, and it has been firmly taken on board. 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 to report on what developments he proposes by way of internal outlets for the expression of grievances or anxieties by individual members.
I believe this demonstrates that the Government are very much alive to the points which have been made in recent public discussion, and which the noble Lord, Lord Donaldson, put before us. I do not think it follows that we should necessarily accept the approach contained in this new clause. After all the position at the moment is that the new director of the security service has been charged with the task of looking into the management of his service. That he is doing and is reporting it to the Security Commission. My right honourable friend has said she believes that there could be an internal route under a different style of management, but these are all matters which must be considered with the staff concerned. The Government do not feel that the job should be rushed. Nor should we fall into the trap of assuming that this is something necessarily to be dealt with in legislation, let alone in legislation on interception. The noble Lord recognises that it goes much wider than that. I ask the noble Lord to consider whether it is wise to rush to conclusions on proceedings on this Bill and whether it is not wiser to give the new director of the security service a chance to look into the management of the service and to come up with full recommendations of his own when he has made those investigations. That is why I do not feel able to accept this new clause in the context of this Bill.
§ Lord Donaldson of Kingsbridge
I am grateful for a full reply from the noble Viscount and I shall discuss it with my noble friend who initiated this amendment. My only comment before withdrawing the amendment is that as the new head of the security services is to make intensive enquiries we shall never know what conclusions he will come to which might be rather disappointing. I do not know whether later when he has had time to do that we might ask a question and receive an answer on what he found. Having said that, I am happy to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ The Earl of Swinton
I think that this might be a convenient moment to break for dinner. Before I resume the House, I suggest that we do not return to this Bill until 8.20 p.m.
§ I beg to move that the House do now resume.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.