§ House again in Committee.
§ Clause 9 [Exclusion of evidence]:
Lord Mishcon moved Amendment No. 17:
Page 8, line 3, after ("shall") insert ("except as authorised by direction given in pursuance of subsection (1A) below").
The noble Lord said: With the permission of the Committee, I shall also be talking to Amendment No. 18, with which No. 17 is very much linked.
Amendment No. 18: Page 8, line 8, at end insert—
("(1A) A direction as mentioned in subsection (1) above may
be given by a court or tribunal if that court or tribunal is satisfied whether on application or otherwise that a failure to give such a direction would seriously prejudice the rights of one or more of the parties to the proceedings before it.").
The amendments refer to Clause 9 of the Bill, the marginal note to which is "Exclusion of evidence". As I see it, this is an extraordinary clause because it provides in very clear terms that,
In any proceedings before any court or tribunal"—
that is any tribunal—
no evidence shall be adduced and no question in cross-examination shall be asked which (in either case)"—
that is, in the case of adducing evidence or putting a question in cross-examination—
tends to suggest—
If the Committee will be good enough to look at subsection (2), it says that,
The persons referred to in subsection (1) above are—
§ If the clause means what it says, it means this. First, the court is given no discretion whatsoever—nor is the tribunal—in regard to the admission of any such evidence or the putting of any such question in cross-examination. It means that, if that be so, whatever the court might think—for example, the cross-examination of the defendant in the Malone case could never have taken place in order to find out that indeed from the policeman's notebook it appeared there had been an interference, an interception, of a communication.
Secondly, the clause refers to "any tribunal" and, as we all know, one of the tribunals that we have in this country is an industrial tribunal. I borrow this example for the honourable Member for Grantham, who bears by way of inheritance a name much honoured in this Chamber. I refer of course to Mr. Douglas Hogg, and I borrow this example from the honourable Member's speech in another place, which I know that I must not read in extenso or quote from and therefore, if I may, I will paraphrase it. He gave as an example before an industrial tribunal a case in which somebody coming within the category of (2)(b) of Clause 9—that is to say,
the Post Office and any person engaged in the business of the Post Office"—
had been dismissed because the Post Office had discovered that that employee had breached the provisions of Clause 1 of the Bill and had indeed committed an offence under Clause 1 by intercepting communications without any authority and without any warrant. So they dismissed him. The employee thereupon brought a case for unfair dismissal before the industrial tribunal and he queried what, in the name of Heaven, was the position of the Post Office under this clause—because this is a clause which says that,
In any proceedings before any court or tribunal no evidence shall be adduced and no question in cross-examination shall be asked
which … tends to suggest … that an offence under section 1 above has been or is to be committed by any of the persons mentioned in subsection (2) below …".
§ This is an impossible position, because paragraphs (b) and (c) clearly cover any such situation. Quite apart therefore from what apparently to me (although I may be proved to be quite wrong) is the absurdity of the clause—but if I am guilty of the offence of thinking that there is an absurdity when there is no absurdity, I share in glory that position with the honourable Member for Grantham, as I have said—what are we doing absolutely excluding evidence without giving the court any discretion?
§ I can remember discussions in your Lordships' Chamber, in which, if I remember correctly, more than one Law Lord participated, when we were dealing with evidence. It must have been in connection with the Administration of Justice Bill; and I can remember lawyers more learned than I shall ever be talking about the wrong road which the American courts and the American legislators had found they were treading in excluding evidence completely which had been improperly obtained, without giving the court any discretion at all. I believe that it was called "the absolute exclusion".
How extraordinary that we should have criticised that provision of the American courts and the road which they trod and from which I think they are now trying to come back! That is to say, excluding evidence absolutely without any discretion for the court where evidence has been improperly obtained. Yet here we are in a Bill excluding evidence completely which,
… tends to suggest that an offence under section 1 … has been or is to be committed by any of the persons mentioned …
in this subsection. So, bearing in mind the discussion which took place, and bearing in mind what I know to be the position of many eminent lawyers in our country, I have tried by this amendment to give a discretion to the court, and thus I insert in Amendment No. 17,
except as authorised by direction given in pursuance of subsection (1A) below".
Then in Amendment No. 18 I introduce the following as a subsection:
A direction as mentioned in subsection (1) above may be given by a court or tribunal if that court or tribunal is satisfied whether on application or otherwise that a failure to give such a direction would seriously prejudice the rights of one or more of the parties to the proceedings before it".
Therefore I am following the line of the Bill but I am merely giving an ultimate jurisdiction and discretion to the court or to the tribunal to say, "No, if we exclude this evidence completely or this right to cross-examine, we are indeed perpetrating an injustice; we are prejudicing the rights of one or more of the parties to the proceedings before our court or tribunal, and therefore we are going to say that this evidence is admissible". That seems to me to be a sensible alteration of a clause which, at the moment, is not at all sensible. I beg to move.
§ 8.30 p.m.
§ Lord Denning
I have great sympathy with this amendment. Of course, the origin of this sort of thing is when the police get information from an informer who does not wish to give evidence in the court about 917 it. The judges have ruled that he cannot be asked from what person he got the information or what the information was. The judges have ruled that because, if he were once compelled to give the name of his informer, all sources of information would dry up all together. That was the court's ruling.
Of course, it is a most difficult situation with which we have to deal here, because everything must be very secret in this matter, especially information in regard to a serious crime or whatever it may be. It must all be kept very secret so as not to put the culprits on their guard. They must not get information. You have to remember that it is before any proceedings, before any court or tribunal, and I suppose that that includes the prosecution of a person who is alleged to have intercepted without proper authority. I can understand that there will be great difficulty in giving him a fair trial in those circumstances, if evidence of all kinds is being excluded.
So, in a way, I would support the amendments in giving a discretion to the court, or to whoever is dealing with the matter, to admit such a question as this if it would be not prejudicial to security or anything of that kind. On the whole I think it would be wise to give a discretion to the judge, or to whoever is presiding over the tribunal, as to the admission of this evidence.
§ Viscount Whitelaw
In presenting this amendment to your Lordships, the noble Lord, Lord Mishcon, has raised a number of specific points with which I shall deal in a moment. He has also raised general questions about Clause 9 as a whole, and it may be helpful to your Lordships if I comment on them first.
I believe it was accepted on all sides of your Lordships' House that it must be possible to maintain the complete secrecy of the system of authorised interceptions, and the noble and learned Lord, Lord Denning, has just referred to that again. The people against whom it is directed, such as spies and drug runners, are highly sophisticated. They will miss no opportunity available to them to find out whether they are the subject of investigation and, if they are, the grounds on which a warrant was issued. It is the Government's very firm view that authorised interception would be irreparably damaged as a method of protecting national security and dealing with serious crime, if this secrecy could be breached. In some cases, even to allow somebody to discover that he is the subject of attention might make it impossible to pursue an investigation. Disclosure of the pattern of use of interception would also be immensely damaging. It would be irresponsible of any Government not to ensure this secrecy. I rather suspect that so far we are on all fours in that particular regard.
The Bill accordingly contains a number of special safeguards. The arrangements for the tribunal have been framed with this in mind. The same consideration applies to other court proceedings. Clause 9 is designed to ensure that the confidentiality of information about interception is preserved, so that ingenious litigants and their even more ingenious advisers cannot use the courts to discover whether or not a warrant has been issued. The essential point is that the enactment of the Bill will change the situation. So far it has been possible to construct safeguards on 918 revelations about warrants on an ad hoc basis. This has proved increasingly unsatisfactory. With a comprehensive statutory scheme it will no longer be safe to rely on it. Moreover, in the Government's view it is right in principle that a Bill which seeks to be comprehensive and to provide answers about questions relating to all aspects of interception should make the position clear in connection with court proceedings. It will be quite wrong to leave the law to be established by the courts as a development of the principles of public interest immunity, when in this field it is so vital that the answers must be certain.
In the Government's view, the clause does not impose an unacceptable restriction on proceedings. As the noble and learned Lord, Lord Denning, pointed out at Second Reading—and we are indeed indebted to him for doing so—and as he has repeated tonight, a policeman cannot now be asked in the witness box about an informer. This is a long-standing restriction, which is essential if the use of informers is to continue to make the vital contribution that it does to the successful detection of crime. The restriction on information about interception is comparable. Moreover—and I think this is important to emphasise—the nature of the rules of evidence in criminal trials is such that it is highly improbable that in any case material obtained by interception would be admissible evidence.
It has been suggested that Clause 9 would prevent people from obtaining their rights before the courts. The example of Malone has been cited. I do not really believe that there are any grounds for this fear. In the case of Malone, the High Court specifically said that it had no locus in the matter. Interception was lawful and that was that. The courts, in other words, do not provide a remedy now, so nothing is being taken away. What the Bill does is to establish an effective remedy through the tribunal. It is to the tribunal that any future Malone would go. There, he could be assured that his case would be thoroughly examined, whatever sensitive issues it gave rise to. Whatever freedom there might be for the courts, they would surely never be able to examine the kind of material which will be routinely available to the tribunal.
The question has also been raised about the relationship between this provision and the breach of confidence legislation, which my right honourable and learned friend the Home Secretary has said the Government will introduce on the basis of the Law Commission's report. I am reluctant to widen our task by discussing the detail of a draft Bill which the Government intend to introduce in the future, although, of course, everything said here today will be taken very much into account. The relationship between the two provisions is a matter that we shall have at the forefront of our considerations when we look at the draft breach of confidence Bill in the light of the decisions taken here and in another place on the Bill now before us.
Noble Lords will appreciate that the clause works by imposing a general restriction and then making specific exceptions to it. The Government believe that this is the right way to go about things. In this context, the noble Lord, Lord Mishcon, pointed out on Second Reading—and he has argued it again today—that the Bill unacceptably prevents relevant information being 919 brought before an industrial tribunal when somebody has been dismissed for doing something amounting to or associated with interception. He has cited in his support the Member for Grantham in another place, and who better to cite in one's support than a member of that family? His argument, I must admit, quite apart from that, was persuasive, and I can give the undertaking that the Government will consider what he has said with a view to introducing an appropriate amendment at Report stage. That is on the specific point—
§ Viscount Whitelaw
I have not finished. I think I should say to the noble Lord, that that was on the specific point of the industrial tribunal, about which he made a very specific and important point. If, despite what I have said, the prosecution in a criminal case has in its possession, as a result of interception, material which might clear the defendant but which cannot be put in evidence because of Clause 9—and which, incidentally, because of long-standing practice would not now be put in evidence either—and if that evidence is capable of raising a reasonable doubt in the minds of jurors as to the guilt of the accused, the prosecution will be dropped. I understand from my right honourable and learned friend the Attorney-General that this is the practice of the Director of Prosecutions where similar problems arise today and any case where this problem does arise will come to the Director's attention. This will, of course, be more clearly certain when the Crown Prosecution Service comes into operation.
Finally, I must refer to what I believe are two mistaken assumptions on which this amendment is based. The first is that the courts will know that there is evidence of this kind to give. I do not believe that this will be the case. It would undoubtedly be unacceptable if it were, because it would mean that the essential secrecy to which I have referred had already been breached. Second, and more important, is the fact that, by following the path set out in this amendment, both parties to the proceedings in question might be involved in any consideration of whether or not a direction should be given, and if it was would be privy to what was presented as a result.
I am sure your Lordships can conceive of circumstances where an ingenious litigant would discover grounds on which he might expect to persuade the court that it was in his interests that evidence which he believed to be in the hands of the authorities, and which he believed to be the result of interception, was essential to secure his rights. If he argued this before the court, what does it do? As a minimum, it must presumably find out whether there is anything in the story. It can only do that by asking the Crown, and at least forcing the Crown either to confirm or to deny the existence of a warrant.
That, in itself, tells the litigant a great deal. It breaches the very confidentiality on which the effectiveness of authorised interception so crucially depends. In short, I believe that the approach embodied here gives just the opening that the ingenious criminal and spy will want. I am bound to 920 say that it would be immensely damaging if that was what happened. In short, I believe that it would be wrong to allow it.
I have said a great deal on this amendment and have adduced a number of reasons for believing that the approach contained in the clause as it is now drafted is the right one. But at the same time I have recognised the important point about industrial tribunals which was made by the noble Lord, Lord Mishcon. We will certainly seek to deal with that on the lines that I have suggested, before Report stage. With that in mind, and in the light of the undertaking I have given on that point, I hope that the noble Lord will see his way to withdraw the rather broader nature of the amendments.
§ Lord Denning
May I just say that, having listened to all that the Lord President of the Council has said, I am quite persuaded that it would be wrong to entrust the judge with a discretion? It is much better for him to have a firm rule whereby evidence of this kind is excluded because of the danger of the criminal, the terrorist or whoever it may be getting to know the sources of information, the way the interception works or matters of that kind. It is the same as in the case of the informer which I mentioned.
It is very important to keep all these things quite secret and not to let them get to the knowledge of those who are charged or who are serving in any way. It is better to have a definite rule rather than to give the judge a discretion, which this does. My noble friend has got part of his case and has the industrial tribunals, which are to be considered. But, on the whole, let the principle of the clause as it stands remain.
§ 8.45 p.m.
§ Lord Mishcon
May I at once thank the noble Viscount for the gracious way in which he accepted part of the argument which I tried to advance in support of this amendment? I repeat that it was as a result of reading the Official Report of the proceedings in another place that I found the strong point about the tribunal mentioned by the honourable Member for Grantham. As I believe it is only right to recognise the source of what would otherwise appear to be an original and brilliant point, instead of taking credit for it I immediately repeat the fact that it was originally made in another place. But I thought it correct to borrow the point because I believed it was right.
With regard to the rest of the argument, I assure the noble Viscount that I have no intention of pressing this amendment to a Division. Looking around me, I can foresee the consequences if I did so. But, in any event, I would not have dreamed of doing it in view of the noble Viscount's response.
The only point that I want to make is this. I do not think—and I say this with great respect—that all the ramifications of this clause have really been thought out. If it were limited to protecting the sort of information of informers and all the rest that the noble and learned Lord, Lord Denning, so correctly mentioned, then of course I would be in favour of protecting it. But I am afraid that what we are possibly doing here is making a very strong wall that cannot be climbed, because no discretion is left to the court, which may 921 inhibit the progress of proper proceedings and justice in quite a few cases.
At this time, I shall not give examples and lengthen a speech that I have no doubt has been quite long enough. But the noble Viscount said that I had cited on Second Reading the case of Malone and had repeated it today, and had said—in his view, not with great justification—that the very origins of this Bill, and certainly of the case that was brought by Malone before the Court of Human Rights, was not a very good point, because it was decided that he had no rights at that stage, but could now go to the tribunal.
The whole thrust of my argument is that dear Mr. Malone would not have had the slightest knowledge, but for the question that was put in cross-examination, that there had, in fact, been any wrongful interception so far as he was concerned. He therefore would have had nothing on which he could go to the Court of Human Rights, to a tribunal or to anywhere else. It was only because his counsel put in cross-examination a question which elicited the fact that a wrongful interception had taken place that it became apparent. What we may well be doing, if we allow Clause 9 to stand as it is, quite apart from any amendment to cover the industrial tribunal point, is seeing that the author, very likely, of this Bill—the case of Malone—can never reappear in the future, because Malone or his counterpart will never know if a wrongful interception has taken place, whether by a police officer as a servant of the Crown or whoever it is.
Having made both points, I know from the courtesy always extended by the noble Viscount that he will consider what I have said, whether it be good, bad or indifferent, and come to a conclusion not only upon the matter of the tribunal on which he has been so gracious, but possibly in regard to the wide ramifications of this clause. He may find on reflection—and I say this with great respect—that some discretion must be given to the court or to the tribunal concerned, bearing in mind that, as we all know, when such a submission is made, if it be a criminal case, the jury is not present, nor are the public and in certain cases neither are the participants to the litigation or the prosecution or the defendant. Having said that, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 18 not moved.]
§ Clause 9 agreed to.
§ Clause 10 [Interpretation.]:
Viscount Whitelaw moved Amendments Nos. 19 and 20:
Page 8, line 40, leave out from first ("copy") to ("and") in line 41 and insert (", in relation to intercepted material, means any of the following, whether or not in documentary form—
Page 9, line 7, leave out from ("warrant") to end of line 9.
§ The noble Viscount said: Perhaps I may move Amendments Nos. 19 and 20 together. These amendments are purely drafting ones designed to secure the better expression of two of the definitions 922 contained in Clause 10. They introduce no change of substance to the Bill. I beg to move.
§ On Question, amendments agreed to.
§ Viscount Whitelaw moved Amendment No. 21:
§ [Printed earlier: col. 852.]
§ The noble Viscount said: This amendment has already been spoken to. I beg to move.
§ On Question, amendment agreed to.
Lord Mishcon moved Amendment No. 2:
Page 9, line 43, leave out ("or") and insert ("and").
§ The noble Lord said: One of the ways in which a warrant can be issued by the Secretary of State is if he has before him matters which seem to show that a serious crime has been or may well be committed. "Serious crime" is defined in this Bill in the interpretation clause, which is Clause 10. Your Lordships will find that at the bottom of page 9, in subsection (3). It is obviously most important that there is a clear definition of what we mean by "serious crime".
In another place at various stages of the Bill, because of the seriousness and importance of this matter, there were discussions on whether or not the term "serious arrestable offence", which we discussed in another Bill and defined in another Bill, should be used here. It was found—I think for good reason—that "serious arrestable offence" was possibly not appropriate. Then again there was discussion as to whether the actual crime should be put down in a schedule. Again, I would agree with those who would say that to have a comprehensive list of the crimes to be covered here might not serve a useful purpose. I shall now deal with one of the things that makes me most unhappy about this subsection in regard to the definition. Perhaps I may refer the Committee to subsection (3). Let us see what it is that for the purposes of this Bill would constitute a "serious crime". It says:
For the purposes of this Act conduct which constitutes or, if it took place in the United Kingdom, would constitute one or more offences shall be regarded as serious crime if, and only if—
I pause there. How much violence? Who is to decide whether what the noble and learned Lord, Lord Denning, defined with such dramatic art as battery only the other day by, if I remember correctly, touching the shoulder of one of the Hansard reporters, was violence? Was that violence when the noble and learned Lord did it? Was it merely as he said a slight form of battery, but nevertheless battery? How much violence? How severe?
(a) it involves the use of violence,"—
The subsection continues:
results in substantial financial gain".
That is a very subjective test. What to one Member of your Lordships' Committee may be "substantial financial gain" to another Member of your Lordships' Committee may be a mere pittance. We discussed that in another context in another Bill when we thought about the robbing of the widow of what might be 5p, which to her at that time was a very substantial amount.
The subsection continues:
or is conduct by a large number of persons in pursuit of a common purpose".
I am not quite sure that I know what that means if it is to be taken by itself.
conduct by a large number of persons in pursuit of a common purpose",
can be merely marching down a street or arranging to meet in one of your Lordships' rooms, because those involved have a common purpose and presumably in the course of it are guilty of some conduct, if "guilty" is the right word to use. They merely conduct themselves in a certain way.
Then the subsection continues:
(b) the offence or one of the offences is an offence for which a person who has attained the age of twenty-one and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of three years or more".
That is a remarkable assessment for the Secretary of State to have to make, bearing in mind, I suppose, that he would have to imagine the submissions that might be made in mitigation and which might in fact reduce the sentence to one of two years instead of three years or more.
I could go on like this, but I decided that there was no real creative purpose in my pursuing a destructive line in regard to this definition if I could not come forward with some improvement. I am going to take it for granted at the Committee stage that this is the best we can do; but we cannot leave it as alternatives. At least we can strenghen the matter; I am referring to violence, I am referring to the substantial financial gain, and to the conduct by a large number of persons in pursuit of a common purpose. I say: do not make these alternatives but make it all qualified by the word "and" instead of "or" before paragraph (b), so that anything that comes within paragraph (a) constitutes:
the offence or one of the offences … for which a person who has attained the age of twenty-one and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of three years or more".
§ If we insert "and" instead of "or" we get the situation where anything in paragraph (a) has at least to be of such a serious nature that it would in fact on reasonable assumptions mean that there would be imposed a sentence of imprisonment for a term of three years or more. That is the reasoning behind my amendment. As I have just said, I have tried to make it as constructive as possible and not destructive. I beg to move.
§ Lord Denning
I hope that your Lordships' Committee will not accept this amendment. The real purpose behind this particular power is that the Secretary of State should be able to issue a warrant where it is necessary for the purpose of preventing or detecting serious crime. Nothing is more important in the present day than that we should be able to prevent or detect serious crime. One of the ways of doing it is by tapping beforehand the telephones of criminals or whoever it may be.
The leading phrase in the subsection is "serious crime". The definition in the subsection on page 9 reads:shall be regarded as serious crime if, and only if".924 It seems to me that the word "serious" must be read and should be read as applying to the whole of those categories. It is for the Secretary of State to decide whether or not it is sufficiently serious to justify the use of a warrant for the interception. Surely it is right to detect crime if it involves the use of violence. That means serious violence, not a mere tap on the shoulder. It means crime which,results in substantial financial gain",which means probably thousands of pounds, not a few shillings; or,conduct by a large number of persons"—which is very important with all the riots and so forth—in pursuit of a common purpose".That seems to be perfectly proper. The subsection goes on:or(b) the offence … is an offence for which a person who has attained the age of twenty-onemay be liable to three years' imprisonment. Again the overriding word is "serious".
The Secretary of State can be trusted to issue the warrant only when it is a serious crime and when it is necessary. In other words, this definition clause seems to me to be helpful and not one in any way to be impugned. Therefore I would resist the amendment.
§ 9 p.m.
§ Viscount Whitelaw
I am grateful to the noble Lord, Lord Mishcon, for giving the Committee an opportunity to consider the definition of serious crime which, as he said, was introduced into the Bill in response to concerns—whose force the Government accepted—expressed in another place. For reasons which I shall set out in a moment, though, I am bound to resist the amendment standing in the name of the noble Lord. I am nevertheless sure that it is important that your Lordships should have the opportunity to examine one of the provisions which is, as the noble and learned Lord, Lord Denning, said, so fundamental to the exercise of the Secretary of State's discretion.
The definition of serious crime which would appear in Clause 10(3) is the same as that set out in the 1980 White Paper on interception, together with the addition made in April 1982 following the second report of the noble and learned Lord, Lord Diplock, in his capacity as monitor of interception arrangements. I can assure your Lordships that there are no changes of substance between the White Paper definition (with the addition made on the recommendation of the noble and learned Lord, Lord Diplock) and the formulation now in the Bill.
It was made quite clear in the 1980 White Paper (as indeed it was in the 1957 Birkett Report) that an activity could be regarded as coming within the "serious crime" definition if it satisfied any one of the relevant criteria; that is, that it involved an offence for which a man with no previous convictions could reasonably expect to receive at least a three year sentence, or an offence which met one of the other criteria, such as the use of violence.
The noble Lord's amendment, though it may look innocuous enough—and I certainly appreciate his 925 motives in putting it forward—would in fact significantly narrow the grounds on which the Secretary of State may authorise interception for serious crime purposes. It would narrow them not only in relation to what is in the Bill but also, as your Lordships will appreciate from what I have already said, it would by the same token narrow them in relation to the past practice of Secretaries of State over a long period. It would do so in a way which I have to tell your Lordships would hinder the effective use of interception in the fight against certain types of crime which I am sure your Lordships would want to see investigated by the most effective means possible including, where appropriate, the use of interception. The amendment brings about this narrowing by making the criteria cumulative, so that, for example, a warrant in a case involving the use of violence could not be granted unless there was also a likelihood of a three year sentence for a first offender.
If we look at the part of the definition which refers to,conduct by a large number of persons in pursuit of a common purpose",this element is needed to deal with the case of a major criminal conspiracy in which the involvement of any individual is not necessarily such as to bring the case within the criterion relating to the length of the likely sentence. Some form of racketeering might be an example of where this criterion would come into play.
Turning to the criterion of "substantial financial gain", I think we should first of all remind ourselves that it was introduced on the recommendation of the noble and learned Lord, Lord Diplock, who I am sure would not have suggested the addition of an extra criterion if he had considered that the circumstances which he had in mind were covered by any of the other criteria. One example suffices to show where this criterion might justify interception in circumstances where interception could not legitimately be authorised on any of the other specified grounds, and that is the importation of indecent or obscene material, which carried a maximum sentence of two years' imprisonment. Yet the rewards of this activity can run into millions of pounds, and I cannot believe that your Lordships would wish interception to be ruled out (as might well be the effect of the noble Lord's amendment) in the fight against the smuggling of especially repugnant forms of hard-core pornography involving, for example, bestiality or the sexual abuse of children.
Finally, I do not think that there can be much doubt that interception should continue to be available, as it has been over a long period, for use against crimes of violence, and that it should not also be necessary to show, as the noble Lord's amendment would require, that there was a likelihood of a three year or more sentence on first conviction.
I appreciate very much the motives which led the noble Lord to put forward this amendment and the way in which he very reasonably presented it. I hope that he will consider very carefully the explanations I have given, and indeed the firm assurance—which I gladly repeat—that the clause as drafted does no more than put the existing rules into statutory language with no widening or narrowing. I have to say to the noble 926 Lord that this is one of the areas where I did have considerable experience of operating the warrant system. Frankly, I would be very unhappy, from what I learned at that time, if this definition were to be changed. I hope that the noble Lord will consider very carefully what I have said from experience on this occasion and that he will not feel it necessary to press his amendment.
§ Lord Mishcon
As the noble Viscount knows, I have considerable respect for what he has said in his last few phrases. The noble Viscount speaks from a wealth of experience which was put at the disposal of this country and which has been very much appreciated. Having said that, I still believe there was some substance in what I put forward by way of argument in regard to this amendment. I still believe that although one may want to reduce the term of imprisonment from three years to two years, then if it were to be—as the noble and learned Lord, Lord Denning, said—always to be treated as a serious crime, I would have thought that linking it to some form of anticipatory punishment and making that cumulative but not alternative might be the way of seeing to it that proper consideration was given to the nature of the crime before it was considered to be serious.
Having said that, I wish to consider very carefully what the noble Viscount has said. In the circumstances, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 10, as amended, agreed to.
§ Remaining clauses agreed to.
§ Schedule 1 [The Tribunal]:
Lord Mishcon moved Amendment No. 23:
Page 11, line 4, leave out ("each") and insert ("at least three").
§ The noble Lord said: I think I can deal with this very briefly. The tribunal has been given very important powers. I know how the noble Viscount has talked, not only in regard to this Bill but on previous occasions, as have other Ministers, of the need for flexibility when considering legislation.
§ The Bill provides that each and every member of the tribunal must be a lawyer; and the question of seniority is dealt with in the Bill. I am not saying that it would be wrong to appoint only lawyers to this tribunal. One realises exactly what they have to do. My amendment provides that at least three out of the five are lawyers. I emphasis "at least" so that, in fact, all five could be lawyers, or four could be lawyers, but at least three must be lawyers. This will leave some discretion in the future, bearing in mind how the tribunal will work, so that if it were thought expedient that each and every member should not be a lawyer someone not coming within the qualifications set out in the Bill could be appointed. Therefore, it will give the flexibility which is so often asked for by Ministers and which I support on this occasion.
§ It may come oddly from me that I should be moving an amendment that possibly excludes a distinguished member of my profession from being a member of the tribunal. I do so with great sincerity because I believe 927 it is wrong for such an inflexible provision to be in the Bill and that nobody but a lawyer can ever be a member of the tribunal so long as the Act is on our statute book. I beg to move.
§ Lord Denning
I think that on the whole it is as well to have all lawyers on the tribunal. We have considered what they will have to deal with. They will have to consider matters which would be determinable on judicial review if it were the High Court. That is essentially a lawyer's task. I can see the good sense of having perhaps one or two laymen, if need be; but on the whole I would not interfere with the Government's proposals that they should all be lawyers.
§ Viscount Whitelaw
I think this is one of the most upside down discussions that has ever occurred—that the noble Lord, Lord Mishcon, should be arguing for cutting down the number of lawyers and that I, of all people, should be standing resolutely to their defence in a manner which would make the Lord Chancellor proud indeed, I am sure. But that is to some extent the position.
I must ask your Lordships' Committee, as did the noble and learned Lord, Lord Denning, to consider the place of the tribunal in the statutory scheme and the nature of its functions. The tribunal is designed to provide a remedy to the citizen in respect of the exercise of the Secretary of State's powers under the warrant provisions in Clauses 2 to 5. In the ordinary course of events a remedy in respect of any ministerial exercise of a statutory power lies with the courts. Your Lordships recognised during the course of our debate last month that there were special considerations of secrecy which ruled out the use of the courts in this particular instance.
The tribunal is thus an alternative to the courts made necessary by the very special circumstances of interception. Its task is also essentially judicial, as is made clear by the terms of the Bill. Moreover, it has powers comparable to those of a court to award such compensation as it sees fit if it concludes that the Secretary of State has acted unlawfully, and to overturn the decision in question.
The term "tribunal" is applied to a wide variety of bodies examining the exercise of powers in a great variety of circumstances. More often than not, the circumstances are ones where the power has been exercised by an official on behalf of a Minister or by a private person. Here we are, as I said, concerned with the alternative to a court of law and with a body which is reviewing the personal decisions of a Secretary of State, with all the powers which flow from that. In these circumstances, it is the Government's very firm view that the tribunal should be composed of legally qualified people. More than that, it should—as is the effect of the first paragraph of Schedule 1—be composed of people qualified for judicial office by virtue of their seniority in their profession. Such people, by virtue of their background and qualifications, have both the right knowledge and the right skills to bring to bear on the exercise of the functions which I have described.
928 I do not of course argue from this—and who like me, would do so?—that legally qualified people are the only ones capable of reaching a mature and balanced judgment. If I may say so to your Lordships, I should be the last person to do that. It does not follow that legal qualifications are the only ones that are necessary or appropriate, and I would come back strongly to the noble Lord, Lord Mishcon, on that. The Government have never argued that, and I do not do so now. My right honourable friend the Home Secretary has made it clear that he expects the members of the tribunal to include those who, in addition to their legal qualifications, have a wide experience of affairs. Of course it is right that not all the members should just have experience of a solicitor's office or of practice at the Bar, and the Government's undertaking to ensure that this wider experience is adequately represented is without equivocation.
There is one other important consideration to which I must draw your Lordships' Committee's attention. It is the Government's belief that this Bill meets the United Kingdom's obligations under the European Convention on Human Rights. It is our intention that it should do so. The convention requires that there should be an effective remedy. The Government believe that the provisions relating to the tribunal as set out in the Bill offer such a remedy, and we would not like its effectiveness in any way diminished, as I think it could be—or there would be those who would seek to make it look so—if the noble Lord's amendment was adopted. I believe that your Lordships would agree that that would be an undesirable result.
In these circumstances I hope that the noble Lord, Lord Mishcon, will accept that the spirit of his amendment—the need to secure wide experience on the tribunal—is met by the undertaking I have repeated today. To that extent, I believe the noble Lord and the Government are of one mind. But it remains the Government's view that all members, whatever their wider experience, should be legally qualified. For the reasons I have given, I hope that the noble Lord will feel that he can withdraw his amendment.
§ Lord Mishcon
I am a proud member of a profession which over the past year or two has been accused of being monopolistically minded and the closest of closed shops that ever was. I hope that my speech tonight and the amendment that I have moved prove those accusations to be false. Having proved how false they are, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 9.15 p.m.
Lord Mishcon moved Amendment No. 24:
Page 11, line 33, leave out ("one") and insert ("three")
The noble Lord said: Again, I hope to deal with this matter briefly. Everybody has agreed that the tribunal is one of the pillars of the Bill and everybody agrees that the public ought to have confidence in the tribunal and the way that we have made provision for complaints—the matters referred to the tribunal—to
be dealt with by it. Therefore it was with some dismay that I saw in the schedule in paragraph 3(2) that:
The functions of the Tribunal in relation to any application made to them shall be capable of being carried out by any one or more members of the Tribunal designated for the purpose by their President".
§ I think that we owe it to the public that they should see that when there are five members of a tribunal there should be at least three who deal with an application. For example, where a complaint is referred to the tribunal which is obviously, as lawyers would say, vexatious—it has no proper basis and possibly emanates from somebody with an unbalanced mind—I am not suggesting that three members of the tribunal should solemnly sit down and decide upon the matter and that there is no need to proceed with the complaint. But I say that even in a case like that the decision should be endorsed by another two members of the tribunal at least, by their initials signifying that they have read through the papers and have come to the same conclusion. I think it wrong for the public to be given the impression that questions of compensation and matters of that kind can be decided by one member of the tribunal alone. I beg to move.
§ Lord Denning
The important words here are:designated for the purpose by their President".We have many courts and tribunals which have several members, but the president is usually the one who knows what the case is about. He sees it beforehand and says that it needs a three-judge court, or a five-judge court, or it may be in trivial cases of little importance that one can deal with it. It seems to me that we should do well to leave it to the president of the tribunal to decide how many should deal with a particular case, and rely on the president. I should not be in favour of the amendment.
§ Viscount Whitelaw
The noble Lord, Lord Mishcon, has advanced a cogent case for the inclusion of such a provision in relation to a quorum in the provisions governing the tribunal. I believe that the Government and the noble Lord are of one mind on virtually everything that has been said on this subject today. First and foremost we are agreed—and I think the noble and learned Lord, Lord Denning, has agreed very strongly, too—on the importance of the tribunal. It lies at the very heart of the Bill, and provides a very real remedy for those against whom warrants have been wrongly directed. The noble Lord is accordingly quite right to emphasise that the tribunal's decisions must be properly taken. They may directly affect an individual in a very personal and significant way, and may directly bear on his rights. Of that there can be no doubt.
However, I should not wish the noble Lord to think that the provisions in Schedule 1 have been formulated in order to detract from this in any way or because the Government are seeking to weaken the remedy that the tribunal gives. Nothing could be further from the truth. The Government concluded, as the noble and learned Lord, Lord Denning, suggested, that it was right to allow the president of the tribunal and his colleagues the maximum flexibility in arranging their procedures. This is why the tribunal 930 can sit in two or more divisions and can meet in any part of the country. It is as simple as that.
In adopting this approach, the Government had assumed—and the noble Lord may feel they had taken too much for granted—that wherever an application revealed a relevant warrant all available members of the tribunal would wish to convene to consider it. As a matter of practice I have little doubt that that would be the case. But the Government accept that as it is drafted Schedule 1, by allowing one member to act for the tribunal as a whole, perhaps creates the quite erroneous impression that the examination of a relevant warrant would be undertaken without any consultation. Clearly, it should not be thought that that would happen, and the Government accept that a change should be made to establish a quorum.
However, as in so many matters of this kind there is much more to it than meets the eye at first reading. The noble Lord will appreciate that not all the decisions which are formally that of the tribunal will concern a relevant warrant. In some instances, the tribunal must decide whether an application is frivolous or vexatious. That, too, is important, and affects somebody; but I believe your Lordships will agree that it is a decision of a rather different order. So is the decision to reply to an applicant when there is no relevant warrant or certificate in his case. Again, without in any way detracting from the importance of what the tribunal does, I am sure the Committee will appreciate that some of the applicants will be without genuine grounds for concern. I hope the noble Lord who has moved this amendment will agree that it is at least an open question as to whether three members of the tribunal need invariably participate in decisions of that kind.
A further complication arises over the other provisions I mentioned a moment ago which allow flexible procedures. Having been properly chided by the noble Lord earlier about the importance of flexibility in legislation and how often Ministers rely on this, I have to plead guilty to it again. I think it is likely that the introduction of a quorum may necessitate some consequential changes here. But these are all matters which need to be considered comprehensively and not taken one by one.
In short—and I hope I end the proceedings on this part of the Bill on a happy note—the Government accept that there should be a quorum for the tribunal, and I give an unequivocal undertaking to introduce amendments to the Bill at Report stage for the purpose of establishing one. It will, however, be necessary for those amendments to reflect all the considerations to which I have just referred. I hope that in the circumstances the noble Lord will agree to withdraw the amendment now before us. I think it can be said that on this day, when we have had much in agreement, I have managed to bring the noble Lord, Lord Mishcon, and the noble and learned Lord, Lord Denning, as near as possible together in what I have proposed, and that seems to be a satisfactory way in which to conclude.
§ Lord Mishcon
I am most grateful to the noble Viscount. I know the noble and learned Lord, Lord Denning, will pardon me if I point out that there is a 931 difference between a precedent of a court deciding upon how many judges should adjudicate. The parties are there before the judge. They can see that justice is being done. They can hear the argument before him. They can hear what he has to say in regard to it.
This is indeed a secret tribunal before which the member of the public will not be appearing at all. I am thinking of the appearance of this, of being told, "Well, I suppose it was one member of the tribunal alone who decided that my complaint was absolutely wrong. You see, I had no chance", etc., etc., "of its being dealt with in a proper way by at least something like three members of the tribunal".
I accept completely what the noble Viscount has said. I appreciate the consideration that the Government have given to my amendment and the promise that further consideration may well lead to some amendment occurring at a later stage of the Bill. I shall await that amendment with considerable interest. In the meantime, I beg leave to withdraw this amendment.
§ Amendment, by leave, withdrawn.
§ Schedule 1 agreed to.
§ Schedule 2 [Section substituted for section 45 of 1984 Act]:
§ The Deputy Chairman of Committees (Lord Airedale)
In calling Amendment No. 25, I think I should point out that there is a misprint. I understand that the amendment should read: Page 13, line 6 leave out paragraph (a).
Lord Mishcon moved Amendment No. 25:
Page 13, line 6, leave out paragraph ("(a)").
The noble Lord said: I am most grateful for that indication that right at the end of what has been a very interesting Committee stage there appears to be somewhat of a mess in regard to the amendment that I am due to move. It is not only a question of Page 13, line 6, as so helpfully pointed out, being the proper amendment here instead of Page 13, line 10; namely, that paragraph (a) should be left out. I myself made an error in not thinking sooner that I should also have proposed, Page 13, line 20 leave out subsection (3). So a manuscript amendment to that effect was put in. If, therefore, I may tidy up the situation, the amendments that I am asking your Lordships to consider over the next few minutes consist of the following—because I shall be speaking to all of them. First, Page 13, line 6, leave out paragraph (a). Then, Amendments Nos. 26 and 27 and manuscript Amendment No. 28.
Amendment No. 26: Page 13, line 10, after ("(a)") insert ("or (b)").
Amendment No. 27: Page 13, line 17, leave out ("which is made in the interests of national security or").
Amendment No. 28: Page 13, line 20, leave out sub-paragraph (3)
§ The last amendment is a natural sequel from Amendment No. 27. I hope I shall be able to deal with these matters briefly. As presently drafted, the new section would permit the official telephone tapper to reveal the content of any intercepted conversation in order to prevent or detect crime, however minor—I am aware of what the noble and learned Lord said 932 recently about the serious offence but I say "however minor, without any warrant"—and to give evidence at any trial of that content. The section is not restricted to simple metering. We know that metering means information about the destination and duration of calls.
§ The amendments would ensure that the use made of any intercepted material would have to be covered by the Bill, so that all the safeguards in the Bill would apply. If an intercepted message was disclosed in a manner not authorised by Clause 1, an offence would be committed. The amendment to paragraph (c) of subsection (2) takes out matters that would also be covered by warrant in paragraph (b) but would permit information about metering itself to be disclosed on the order of a court. However, the content of the intercepted conversation could only be dealt with under Clause 9 of the Bill. I beg to move.
§ Viscount Whitelaw
The noble Lord, Lord Mishcon, in moving this amendment, and speaking to those associated with it, has, I believe, done your Lordships' House a service by drawing attention to the very important provisions of Schedule 2, which I think it is fair to say did not receive as much attention in another place as perhaps they deserved. In relation to the disclosure of so-called metering information (that is, records of the numbers dialled and the length and duration of calls made from a particular telephone), the provisions of Schedule 2 provide a clear legal framework, modelled on that found in the Data Protection Act 1984, to control such disclosures, and make any disclosure outside that framework a criminal offence. This is another significant advance which this Bill brings for the safeguarding of the individual's privacy against undue intrusion, and it takes full account both of the views expressed in your Lordships' House when this matter was raised by the noble Lord, Lord Bruce of Donington, during our debates on the Telecommunications Bill last year, and of the relevant findings of the European Court in the Malone case.
I should begin by observing that there is a fundamental difference between interception and the disclosure of metering information, which I shall deal with first. Intercepted material does not come into the hands of the person intercepting in the natural course of events, but metering information is information which is quite properly held by a telecommunications operator in the course of running his business. Meter check printers, which record metering information, are used in a wide variety of circumstances. By far the commonest is where there is a query about a telephone account.
There is no dispute that the disclosure of this information other than for the purposes of operating the telephone system gives rise to sensitive issues, and that there should be a clear statutory basis for such disclosure which sets out the grounds on which it is permissible. The Bill as drafted does this. Nor is there any doubt that access to such information can be of great assistance in the prevention and detection of crime or in the interests of national security.
933 Although the disclosure of metering information undeniably gives rise to sensitive issues, they are not however so acute as is the case in relation to interception. We must bear in mind that in no circumstances can metering information include any of the contents of telephone calls. It is solely a question of disclosing information properly held by the telecommunications operator, in the same way that, for example, a travel agent might tell the police the destination of a ticket he had sold to someone who was believed to be a fugitive from justice.
The noble Lord's amendments and the reasoning which he has advanced in support of them suggests a direct comparison between interception and metering which, with great respect to the noble Lord, I do not believe in fact exists. The European Court recognised that the two activities were different in kind in its judgment in the Malone case. Although it held that the law on the disclosure of metering information, like that on interception, needed to be clarified, it did not suggest that the same procedures were necessarily appropriate in both cases. In these circumstances, the Government do not believe that it would be right to require the Secretary of State to issue warrants authorising the disclosure. That should be reserved for the uniquely serious measure of interception, so that Secretaries of State can continue to give the close personal attention to interception warrants that the Committee rightly expects.
It is important also to realise that nothing in these provisions requires telecommunications operators to disclose metering information. They are simply permitted to do so in circumstances which are defined in a way which closely follows the precedent of the Data Protection Act 1984. Indeed, the comparison between the disclosure of personal data under that Act and the disclosure of metering information is I believe much closer than that between interception and metering.
In turning to the effect of subsection (2)(a) on the disclosure of intercepted messages, it should first be noted that the effect of subsection (2)(a) in this respect is no different from that of the corresponding part of Section 45(3) in the Telecommunications Act 1984, which similarly permits disclosure of the contents of an intercepted message in connection with:the investigation of any criminal offence, or for the purposes of any criminal proceedings".Thus, amended Section 45(2)(a), in its effect on the disclosure of intercepted material, is there essentially to deal with the case of material properly intercepted by a public telecommunications operator other than in accordance with a warrant. This, therefore, means material intercepted in accordance with the relevant exceptions in Clause 1 of the Bill as amended earlier in our proceedings; that is, with the consent of one of the parties to a call or for purposes connected with the provision of telecommunication services. For example, public telecommunications operators may intercept obscene or menacing calls at the request of the subscriber. Where this happens it may obviously be desirable for the contents of the calls to be disclosed to the police and the courts, so that those responsible for these distressing calls can be brought to justice and it should not be necessary to seek a Secretary of State's 934 warrant for this. The amended Section 45(2)(a) allows this.
Another example of the need for the amended Section 45(2)(a) is the case of an engineer listening in for purposes connected with the provision of telecommunications services. Some listening in is an essential part of the maintenance of the telephone system. Most of what is heard, I am sure, is not really listened to or remembered; but what if the engineer happens to hear someone plotting a murder, a hank raid or a terrorist outrage? It would be absurd if he could not report the matter to the police.
I emphasise that the amended Section 45(2)(a) does not permit anyone to intercept calls other than as provided for in Clause 1. But where a call is properly intercepted either at the request of its intended recipient or in the course of normal telecommunications engineering operations, it is right that disclosure for the limited purposes set out in the amended Section 45(2)(a) should not be an offence.
Section 45(3) in Schedule 2, to which the noble Lord, Lord Mishcon, also referred, follows the pattern of similar provisions in other legislation where it is necessary to provide protection for those who in good faith undertake action on grounds of national security where the detailed reasons for their actions cannot be discussed in court proceedings. To give only one example, similar provisions appear in Section 27 of the Data Protection Act 1984 in which, as your Lordships have already observed, the revised Section 45 is based in its effect on the disclosure of metering information.
Your Lordships will note that like the equivalent provision in the Data Protection Act, the certificate can be signed only by a Cabinet Minister, by the Attorney-General or the Lord Advocate. Where the disclosure under Section 45(2)(c) is made on grounds of national security, it cannot be right for the disclosure and for reasons of security to be discussed in court. But it is right that senior Ministers who have the responsibility for safeguarding national security should be able to signify to the courts by means of a certificate in Section 45(3) that national security considerations are involved, and right also that the courts should accept that certificate as conclusive evidence.
In view of the fact that this was not discussed before, I thought it right to set out in answer to the noble Lord the case that the Government have for the particular provisions concerned. I hope that the noble Lord, Lord Mishcon, will study these explanations, and when he has studied them I hope he will find that they are essential and do not in any way detract from the principles which this Bill establishes for authorised interception. The Government believe that Schedule 2 as it stands will achieve the right result, and I hope that after my explanation, and when he has had a chance to consider it, the noble Lord will feel likewise.
§ Lord Mishcon
In the course of the noble Viscount's courteous and lengthy reply to this amendment I noted the words "most of what is heard is not listened to or remembered". I assure him that that does not apply to his speech in my case; but I feel I ought to see the written word and study it rather than take it for granted that I have listened to and remembered all that 935 he has said. In those circumstances, I ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 26 and 27 not moved.]
§ [Manuscript Amendment No. 28 not moved.]
§ Schedule 2 agreed to.
§ House resumed: Bill reported with amendments.