§ 3.23 p.m.
§ The Lord President of the Council (Viscount Whitelaw)
My Lords, I beg to move that this Bill be now read a second time.
I am particularly pleased to be able to move the Second Reading of this Bill today. Its introduction follows the undertaking I was able to give just over a year ago that the Government would legislate this Session on the interception of communications. That undertaking was—as I said at the time—absolutely firm. This Bill is a full response to it, and I gladly acknowledge the part that noble Lords have played in its gestation.
The Government do not approach this Bill in a partisan spirit, and they have never seen it as a measure on which party differences need directly bear. During the course of proceedings in another place the Government made or undertook to make a number of changes in response to concerns that had been expressed. These included spelling out the maximum validity of warrants and that the tribunal could address the merits of decisions taken by the Secretary of State; defining what was meant by serious crime; and introducing additional limitations into the arrangements for urgent cases. This reflected the Government's open mind on practicable changes which might enhance the confidence people could have in the operation and supervision of the system of authorised interception. I know that your Lordships will approach the Bill in the same way, recognising the need for carefully framed legislation in this area, which closely affects individuals but is also vital to national security and to the fight against terrorism, drugs running and other major crime.
I should like first to set on the record a number of the principles which underlie the Bill. On the first, there will, I believe, be agreement here today. Interception is an unpleasant necessity. It is unpleasant because it involves an intrusion into a sphere of daily life where people are entitled to expect confidentiality. It is essential that it is strictly controlled. But it is, as Governments of both major parties have recognised over a very long period of time, a necessity. Speedy communication is vital to those who trade in dangerous drugs or who carry out acts of espionage and terrorism. It would be intolerable that such people should know they were entirely safe from any form of investigation when communicating by letter or telephone.
One example may serve to underline the vital contribution which interception can make to the protection of us all. The police in England and Wales estimate that as a result of interception they have in the past 10 years been able to make more than 5,000 arrests, to recover about £40 million worth of stolen property and to seize drugs valued in excess of £50 million. Those figures speak for themselves.
The question which this Bill is concerned with, therefore, and the question which is before us all as we examine it, is not whether there should be a system of authorised interception but how that system should be regulated and controlled. It is a question not of principle but of balance between the essential 1256 protection to the individual and the vital needs of society as a whole. Such questions are easier to ask than to answer. The Government believe that the Bill provides a clear statutory framework within which they can be answered and within which the answers of those responsible on a day-to-day basis can be independently reviewed.
The second principle is equally fundamental. All Governments—and I emphasise the "all" because I believe there is nothing partisan about this—have operated very stringent controls. I can say without equivocation from personal experience—for, after all, as Home Secretary I had the unpleasant responsibility of operating this system for four years—that the highest of standards are observed and very clear limitations are imposed on the manner in which the power to authorise interception can be exercised. These same standards and limitations apply throughout the system, to those who make application, execute warrants or receive intercepted material. I emphasise this because the Government are not seeking through this legislation any extension of existing practices. The Bill is not designed to allow anything which has not long been done by successive Governments. I wish to underscore that point to noble Lords; it is fundamental to our consideration of the whole Bill.
Thirdly, this Bill is comprehensive in its application to interception. It deals with all aspects of authorised interception; provides a means of redress to the individual and other arrangements whereby that system is checked and reviewed; and establishes a new criminal offence of unauthorised interception. But just as it is comprehensive, so also it does not seek to deal with more than interception. In the Government's view interception is a matter on which it is possible to introduce legislation now, and which gives rise to a distinct set of issues.
Lastly, the Bill, in the Government's view, fully meets the United Kingdom's obligations under the European Convention on Human Rights. It clearly establishes in law the circumstances in which interception can be undertaken and thereby meets the judgment of the European Court last year. Noble Lords will wish to bear in mind that in that judgment the court did not criticise the purpose for which interception was authorised or the manner in which it was undertaken, but simply the absence of a clear statutory framework. The criteria in the Bill on which interception may be authorised are all set out in the convention. The Bill itself narrows the application of certain of these criteria. A number of other grounds set out in the convention, such as public safety, have not been included because in the Government's view they cover areas where interception would be entirely inappropriate.
I should like now to turn to the provisions of the Bill to demonstrate how it is that they seek to achieve the balance to which I referred a moment ago. The Bill rests on Clause 1. First, it sets the Bill's scope as communications in the public system; that is to say, telecommunications and the post. Communications of this kind fall into a special category because people have no option but to commit them to the custody of organisations over which they can have no control. Both the sender and the receiver are entitled to believe 1257 that their communications will be properly safeguarded while they are within these systems, and there is, of course, a long history of statutory provisions designed to ensure that this is the case. It is this scope which underpins all the other provisions of the Bill.
Clause 1 is also fundamental to the measure in establishing a new offence of unauthorised interception. I know it was a surprise to many when, following publication of the White Paper on 7th February, it came to be appreciated that there was not already a general offence of unauthorised interception. There are offences, of course, but they are concerned for the most part with the staff of the public systems. The new offence changes all this. For the first time anybody, whoever he is, whoever he works for, or whatever his purpose, will commit a criminal offence if he intentionally intercepts communications in the public systems in contravention of this provision. The maximum penalty of two years' imprisonment or an unlimited fine, or both, is stiff, and rightly so. Improper interception is a very serious matter and it should be penalised this way.
The exceptions to the offence provide for the circumstances where interception is properly undertaken. This may be in execution of a warrant; or in doing things necessary to run the public systems, such as repairing faults. The Bill also allows somebody to consent to the interception of his own communications; for example, if he is receiving obscene telephone calls. This provision has been criticised as too wide, and my right honourable and learned friend the Home Secretary has undertaken that it will be re-framed. The Government will accordingly bring forward an amendment in Committee in your Lordships' House to meet these objections.
Clauses 2 to 5 are concerned with the authorisation of interception, and are most usefully seen as a whole. Clause 2 empowers the Secretary of State to issue warrants and specifies the only grounds on which he may do so. There are three such grounds, but all rest on the requirement that he must consider the warrant "necessary". This is a central point in the whole Bill. It is not sufficient, for example, that the Secretary of State should consider the warrant to be "expedient" or "desirable". The test of "necessary" echoes the wording of Article 8 of the European Convention on Human Rights. It requires the Secretary of State to examine, for example, whether the warrant itself is necessary as a means of pursuing the particular investigation, given both the value of the information and the opportunities for obtaining it in other ways. Self-evidently, a warrant could not properly be issued where the information would merely be of passing interest.
The first of the grounds on which, if it is necessary, the Secretary of State may issue a warrant is that it is in the interests of national security. The term "national security" is widely used and occurs in some 50 different statutes introduced over a long period by Governments of both major parties. The term encompasses the protection of the country and of its institutions from internal and external threats. As the recent White Paper made clear, it is concerned with 1258 espionage, terrorism and subversion and also with the acquisition of intelligence in support of the Government's defence and overseas policies. The exercise of the power to issue warrants on this as on the other criteria is, as I shall explain in a moment, subject to independent review just as it is governed by the requirement that each individual warrant should be "necessary".
The second ground on which a warrant may be issued is the prevention or detection of serious crime. This term is now defined in the Bill as a consequence of amendments made in another place in terms of the published criteria which, with other aspects of the Bill, are those which have long been applied.
The third ground on which a warrant may be issued is for the purpose of safeguarding the economic wellbeing of the United Kingdom if, but only if, the information it is considered necessary to acquire is about matters outside the United Kingdom, Channel Islands and Isle of Man. This limitation on externality does not apply in the parallel provision in the European convention.
Clause 3 deals with the sort of warrants which can be issued on one or other of the grounds set out in Clause 2. In the case of Clause 3(1), warrants will be directed at the communications of one person or organisation, or at those to or from one set of premises. The provision ensures that the warrant is directed against particular communications from, for example, a particular telephone number. This is necessary not only so that the Secretary of State exercises his powers in a precisely focused way, as he must, but also so that those executing the warrant are left in no doubt whatsoever as to exactly what it is they have to do.
Through subsection (2) this clause also replaces the provisions of the Official Secrets Act 1920 which provide for the interception of external telecommunications. The 1920 powers have been regularly exercised by successive Governments of both parties since they came into force and the Government believe it is essential that they should continue to be available. The provisions of the Bill, however, represent a very considerable narrowing of these powers, both as regards the grounds on which they can be issued—those of Clause 2—and the stringent limitations on the material which may be examined as a result of their exercise.
I turn now to Clauses 4 and 5, which make detailed practical provision for the issue, renewal and duration of warrants, and for their modification. I would wish to detain noble Lords to make only two points. First, they secure the vital principle that the issue of a warrant must be the personal decision of the Secretary of State. There can be no circumstances in which that decision can be delegated, even in the most urgent of cases. This principle is fundamental to the whole system of authorised interception and it is the Government's intention that it should be firmly adhered to. Secondly, in fulfilment of an undertaking given in another place, an amendment will be put to your Lordships' House in Committee to incorporate into the Bill, in a manner applicable to statute, the arrangements for the duration of warrants set out in the 1980 White Paper.
These provisions are complemented by the requirements in Clause 6, which deal with the handling of 1259 intercepted material. Just as the manner in which the Secretary of State exercises his powers must be clearly regulated, so I know your Lordships will agree that there must be strict controls over the use to which intercepted material is put. These controls will be founded on Clause 6. It will require that there are arrangements to limit material to those who really need to know it and to ensure that copies are taken and kept only to the minimum extent necessary under the Clause 2 criteria. These requirements apply comprehensively to the handling of all intercepted communications.
My Lords, I should like now to turn to two of the most important provisions of the Bill, in Clauses 7 and 8. They are fundamental to securing and maintaining the balance between the needs of society and the rights of the individual to which I referred. They introduce an independent element into the system of authorised interception and thereby, I believe, are crucial in ensuring that this system will secure continued public confidence.
The first of these provisions, the tribunal established in Clause 7 and Schedule 1, is entirely new. It offers a means of redress to any person who believes that his communications have been intercepted. Anyone holding such a belief can apply to the tribunal for an investigation. There are no limits on this application; for example, in the form of evidence which needs to be presented or hurdles to be crossed. The tribunal can be brought into play without any need for legal representation or expensive proceedings.
There has been some misunderstanding of the precise nature of the tribunal's task. The Government have sought to remove the grounds for this misunderstanding by incorporating in the clause the reference to judicial review. The task of the tribunal is to decide whether interception had been 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 a warrant was within the specified criteria. The tribunal will thus decide for itself 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 what the tribunal should be about. It must be an effective remedy, capable of providing the means of redress to which people are entitled and to which the Government attach the utmost importance. For the first time, therefore, the decisions of Ministers can be subject to independent review. I cannot emphasise too strongly the importance of this new body, both in ensuring the maintenance of the highest of standards and in securing public confidence.
If the tribunal concludes the Act has been contravened, it must inform the applicant of that fact. It may then quash the warrant in question, order the destruction of intercepted material, and direct the Secretary of State to pay compensation. The Bill imposes no limit on the amount of that compensation. These are very considerable powers as a result of which the decisions of the Secretary of State can be overturned and an aggrieved party duly compensated.
The second of these provisions is to be found in Clause 8, which establishes the post of commissioner. The task of the commissioner is to undertake a 1260 continuing review of everything to do with authorised interception, which includes not only the warrant provisions but also all the associated procedures, and the arrangements for safeguarding material in Clause 6. The commissioner will be a judge of at least High Court standing, and will thus be the successor to the existing monitor, at present the noble and learned Lord, Lord Bridge of Harwich.
The commissioner's continuing review will be free-ranging. He will decide what he wishes to look at, and the Bill ensures that he will have access to all forms of relevant material and may talk to whomsoever he wishes. If, during the course of his work, he discovers a contravention or an inadequacy in the safeguards, he must report that to the Prime Minister. He must in addition submit an annual report to the Prime Minister on everything to do with his work over the 12 months. Subject to necessary deletions on, for example, national security grounds, that report will be laid before Parliament.
The last provision of the Bill I should like to dwell on today is Clause 9, which deals with the exclusion of evidence about interception from court proceedings. Interception, as I know noble Lords will agree, is a vital tool in combating crime and safeguarding the nation's security. It depends for much of its effect on secrecy, not only as to individual cases but also as to the general pattern of its use. It would be ridiculous and wholly counter-productive if, as a result of the enactment of this Bill, spies or drugs runners could mount proceedings against the Secretary of State to find out if there had been an authorised interception, and, if there had been, the grounds on which the warrant was issued, or could force the production of such evidence in a criminal hearing. I have to state very clearly that the Government would be failing in their responsibilities for the effective enforcement of the criminal law in serious cases and for the effective safeguarding of national security if legal proceedings could be used in this way.
The special procedures for the tribunal are one way in which essential secrecy is safeguarded. They ensure that nobody is able to find out about the existence of a properly authorised warrant, or indeed about its absence, merely by making application to the tribunal. This must be right. The same principle applies to court proceedings. In criminal cases hitherto safeguards have been manufactured on an ad hoc basis to protect these things. This has not been entirely satisfactory, and cannot be relied upon when the statutory scheme is in force. It is right that a Bill which deals so comprehensively with other aspects of authorised interception should deal also with this crucial matter. If it is not addressed the long term value of interception might be significantly undermined. I know that your Lordships will wish to give due weight to all these considerations.
Over the past few minutes I have sought to explain the important provisions in the Bill, but in so doing I have necessarily dealt with them in a piecemeal way. In conclusion I should like to urge noble Lords to see the whole measure as one. Each of its provisions complements others. The basis of the scheme is the new general offence of unlawful interception. Everything to do with the issue and management of warrants is clearly set out in the Bill and a statutory basis is given 1261 for tight control over the use made of intercepted material. The decisions the Secretary of State takes and the adequacy of all the supporting arrangements are subject to independent review. The Secretary of State is thus not the final arbiter either on matters of law or on matters of practice. These provisions taken together offer a series of complementary checks and are comprehensive in their application.
I have also sought to set out the main principles which have underpinned the Government's approach to the whole measure. Though there are certain matters on which it would be contrary to national security to speak publicly, I believe that noble Lords will wish to have as clear an understanding as possible of how the Government view this legislation. Interception is, as I have said, an unpleasant necessity. The purpose of this scheme is not only to secure a proper balance between the individual who uses the public systems and the needs of society as a whole, but above all to ensure a means of maintaining that balance. The Government believe that the provisions in this Bill, taken as a whole, meet that objective. It is in that firm belief that I am glad to commend the Bill to your Lordships today.
§ Moved, That the Bill be now read a second time.—(Viscount Whitelaw.)
§ 3.51 p.m.
§ Lord Mishcon
My Lords, as is typical of him, the noble Viscount the Lord President of the Council, if I may say so in marked contrast to his right honourable and learned friend the Secretary of State for the Home Department in another place, introduced this Bill in the soft strains of a Schubert symphony, I say in parenthesis immediately that I chose Schubert in order to maintain the alliteration. I say "in marked contrast" because his right honourable and learned friend in another place used instead the strident tones—it was a mixture of brass, wind and percussion—usually associated with a Wagnerian overture.
This is what he said:there is one important difference between this Government and their predecessors. It is that we are providing, for the first time, a clear and comprehensive statutory framework for the interception of communications".—[Official Report, Commons, 12/3/85; col. 151.]That was a most eccentric view of the history that precedes this Bill. Indeed, if I may be allowed to say so, it completely ignores the very important part played by your Lordships' House before this measure came before Parliament.
If I may, I shall just summarise that history. First of all there was the rule of law requirement in the European Convention on Human Rights. It was embedded in Article 8. That was followed by a case before the European Court of Human Rights in September 1978. It was the judgment in the Klass case. Nothing was done. Following upon that there was the famous Malone case, to which the noble Viscount referred.
That case, if one can put it briefly, concerned a gentleman who was charged with unlawfully dealing in stolen goods. He was acquitted, and by chance, it most likely was, counsel in cross-examining on his behalf 1262 called, as is not unusual, for a policeman's notebook; and on perusing it he saw that there had been some sort of interference—some form of listening to a telephone conversation in which Malone was a participant.
A case was subsequently brought against the Commissioner of Police for the Metropolis. The learned judge, Sir Robert Megarrry, Vice-Chancellor in the Chancery Division, delivered himself of these words in his judgment in May 1979:I would only add that even if it was not clear before this case seems to me to make it plain that telephone tapping is a subject which cries out for legislation".Nothing was done. Following upon that, and indeed concurrently with it, were all the efforts of the Post Office Engineering Union to try to get this put upon a statutory basis. Malone then brought a case before the European Court against the United Kingdom. The commission in its recommendations in the report found against the United Kingdom. Nothing was done.
Then on 21st February 1984, after a similar amendment had been proposed in a previous Session by my noble and learned friend Lord Elwyn-Jones, I had the privilege of moving from these Benches an amendment to bring under statutory control the whole process of interference with telecommunications. It was opposed by the Government which brought into play a voice that we very often miss now in your Lordships' House—that of the then Lord Advocate, Lord Mackay. Despite his strong advocacy against the whole idea of statutory control, noble Lords from all parts of your Lordships' House passed that amendment against the Government by 129 votes to 112.
That was followed by an undertaking given to your Lordships' House at the Report stage of the Telecommunications Bill, and I venture to remind your Lordships of that undertaking which, as one would expect, has been honourably fulfilled so far as the noble Viscount is concerned. He said:My Lords, in rising to move this amendment I should like to make it clear at the outset what I am not doing. I am most certainly not seeking simply to reverse the decision which your Lordships' House took in Committee, against the advice of the Government. I believe that that would be wrong for many reasons, not least in terms of the relations between this House and another place".A sentence later he said:The amendment which was moved by the noble Lord, Lord Mishcon, in Committee reflected a determination that the whole business of telephone interception should be regulated by statute. The amendment found favour with a majority of your Lordships".Later in his statement he said:I have today given an absolutely firm assurance on future legislation. I hope this House will appreciate fully from what I have said when indicating that the Government wholly accept the spirit of the amendment carried in Committee. We accept that the time has come to legislate on this difficult subject".—[Official Report, 19/3/84; cols. 1032 and 1034.]I have recounted that history not just to make a debating point that the right honourable and learned gentleman in another place should be a little more careful about boasting before he make statements of that kind when introducing a Bill in another place. However, my main reason for doing it is to remind your Lordships that indirectly, if not directly, you are the parents of this statutory measure and, as parents, I believe that you would want the child that has come 1263 to you in the form of this Bill to go back to another place in a rather healthier state than it is in at the moment.
If I may say so, this is the way in which I should like to discuss this Bill, and I believe it will meet with your Lordships' approval. As the noble Viscount has said, the whole idea of interfering with privacy of telephone conversations, of the post and of all kinds of telecommunications is anathema to all of us. However, when the safety of the realm is at stake, when there are questions of the state having to deal with espionage and terrorism and the prevention of grave crime, including, as your Lordships well know, trying to track down drug traffickers and people of that kind, it is quite impossible to say that telephone tapping cannot take place.
However, one has to control it. One has to say that, although it is a grave necessity, there is, on the other hand, the valuable principle embedded in the whole of our life; namely, the privacy, and the protection of the privacy, of the subject and the liberty of the subject. What we have to do in this Bill—and it is a difficult task—is to strike that balance. It is against that background, I am sure, that all the debates in your Lordships' Chamber during the various stages of this Bill will take place.
The first point that I have to make in regard to the Bill is that a great opportunity has been lost. The Bill narrowly deals with the question of interference with telecommunications. All of us know, indeed the Philips Royal Commission pointed it out when it dealt with the whole question of criminal procedure, that the danger in regard to interference of privacy and liberty is equally as grave, if not graver, in this electronic age when there are all kinds of electronic devices and bugging and so on can take place.
Perhaps I may remind your Lordships of what was said by the Philips Commission in regard to surveillance generally. At paragraph 3.57 of their report they said,We therefore recommend that the use of surveillance devices by the police (including the interception of letters and telephone communications) should be regulated by statute. The specific practices subject to regulation should be set out in secondary legislation to enable new techniques to be incorporated as they are developed".In view of the long period of gestation, if I may say so, so far as this Bill is concerned, one would have thought that the opportunity might have been taken to deal with that recommendation in the Philips Report and to see that this was broadened into the whole question of dealing with the mechanical electronic devices to which I have referred.
Next I come to Clause 2, which the noble Viscount so correctly said is a very important clause. It sets out the bases upon which the Secretary of State can issue his warrant. He can do it on various grounds. The first one is national security, "the interests of national security". There are the bare words, and there they remain, undefined. If I may respectfully say so, it is no answer to say that in something like 50 statutes the words "national security" occur. They may occur, but they have no direct implication, necessarily, on the reduction of the rights of the subject in regard to privacy and liberty, as much as they do in this statute.
1264 Thus I call for a definition of "national security". I call for it on the basis of no less and no more than the Government's own White Paper and what they said should be covered in regard to national security. I say that it should be for the defence of the realm, for the prevention and detection of subversion, terrorism or espionage.
Then, when it comes to subversion, in order that your Lordships may have a clear definition of that, I turn, if I may, to the noble and learned Lord, Lord Denning, who once gave a definition of one who was guilty of subversion. This was his definition:One who would overthrow or contemplate the overthrow of the government by unlawful means".With my very much inferior mind I have endeavoured to find words which could possibly better that short, sharp, pithy definition of what subversion should mean. If those words were used, there could be no doubt at all among those people who are very anxious about the extent of telephone tapping, who feel very worried about whether or not their organisations, which are perfectly lawful organisations, will suffer, not necessarily from this Secretary of State's warrant but from some future Secretary of State's warrant, because it is thought that they are subversive.
It is a fact that the noble Lord, Lord Harris of Greenwich, in his more mature moments when he was on the Labour Benches, and, indeed, when he was a junior Minister at the Home Office, gave in this House a definition of subversion. I shall say merely that whereas I think that that is possibly a wider definition and a little more vague, it is one which, if the House accepted it, personally I would not want to quarrel with it; although I repeat that I should have thought that the short, sharp, pithy definition of the noble and learned Lord, Lord Denning, was a very good one.
Next we come to an equally vague ground upon which a warrant can be issued. I quote it:for the purpose of safeguarding the economic well-being of the United Kingdom".It is conditioned by Clause 2(3) of the Bill, which says that, in order that a warrant on this ground can be issued, the communication has to be outside the United Kingdom; the communication can be made by a British subject, but it would have to be made outside the United Kingdom.
What does,the economic well-being of the United Kingdom",mean? Here it is in a Bill. I am just wondering whether I can think quickly of an example in this regard. What happens if a merchant bank in this country, carrying on its business, and of course welcoming foreigners as customers, is engaged in a conversation with a customer abroad, who is talking about the heavy selling or buying of sterling? That obviously has a national economic effect. Are we to broadcast to the world that if someone overseas indulges in a conversation of that kind on the telephone, it is possible for our Secretary of State to issue a warrant and listen in, most likely to that gentleman's detriment and possibly to the bank's detriment as well? Obviously, my Lords, we shall have to give very careful consideration to that issue.
I come now to the tribunal. The noble Viscount made a great point of saying—he was quite justified 1265 —that this is the built-in safeguard. The tribunal to be set up will be sitting in secret. One quite understands that this will have to happen. I wish therefore to examine this tribunal with your Lordships for a few moments in this Second Reading debate, and not merely to make Committee points, although it is useful to indicate to the Government what points may be raised in Committee.
The first point—one that your Lordships would never expect me to make—is this. The Bill says that the five members of the tribunal are all to be senior lawyers—or that they are to be lawyers. However, you can take it for granted from what has been said that they will be senior lawyers. I wonder whether it is right that the composition of this tribunal should be limited to members of the legal profession. They are not matters of great judicial complexity that will have to be decided. The whole basis is that of judicial review, as the Bill says.
The tribunal has to decide, "Was it reasonable for the Secretary of State to make the decision that he did in regard to the warrant?", and in its view "Was it reasonable that he thought it was necessary to do so?" I accept that a legal training would be useful. I accept that it would be very good to have a legal colleague sitting with you. I say a "legal colleague" but I should have said a lawyer colleague. I well understand that. But to limit the whole tribunal, not even one member of which is to be an electronics engineer—he is out, although he may be an expert on the matter—in this way, is something that I question.
The next matter that I have to mention is extraordinary. The tribunal is supposed to be the great bulwark of safeguard for the citizen. If your Lordships look at Schedule 1 to the Bill, you will find that it is sufficient for one member of the tribunal to sit and adjudicate on behalf of the whole tribunal. I do not honestly know whether the Secretary of State himself studied the schedule when he was dealing with this matter in another place. I say this with every respect. But it will be found that in the other place—I am looking at col. 1126 of the proceedings of 2nd April—he said:Under the Bill, the tribunal—it will not be a single judge but a tribunal comprising five people—will be empowered to do all of those things".That, obviously, must have given the impression in another place that it would not be a single judge but that five of them would have to be sitting. The schedule to the Bill says no such thing. It says that one member of the tribunal can sit. Again, this is not a mere Committee point. It is a point of principle. Under this procedure, if the public are to feel secure that their complaints are going to be properly looked at—they are serious matters that the tribunal will have to deal with—I do not think it is good enough that they should be told that one single member of the tribunal (from which there is no appeal) can adjudicate upon a matter which they regard, quite obviously, as being so important.
Rather more fundamental than this in regard to the tribunal is that criteria were laid down in the White Paper as to how the Secretary of State is expected to 1266 act. I shall not recite the criteria to your Lordships because I want to try to bring my speech to an early conclusion. But the criteria were set out. They included such matters as making sure that there were no alternative methods, that alternative methods had been tried or that, in the particular case, there could be no alternative methods. Those words do not occur in the Bill. The tribunal therefore is merely looking at the Act of Parliament. It is the Act of Parliament that will be going down through the years. The tribunal will not find those criteria when deciding, as it will have to decide, whether or not the Secretary of State acted reasonably.
Lastly, I have two points. The commissioner, looking at the whole procedure under the Bill, to find out whether it is being properly administered by the Secretary of State in general terms, is, under the Bill, to report to the Prime Minister and only to the Prime Minister. What is Parliament doing? Why should not the report of the commissioner be to a Select Committee of the House? Surely, that is the proper way to deal with this, so that the House can know through its proper representatives what is going wrong or what is right. Should the commissioner's report dealing with matters in general terms, although he may refer to specific cases, just be dealt with by the commissioner and the Prime Minister, or should it go before a Select Committee of the House?
I come to my very last point. Clause 9 of the Bill, with great respect to the noble Viscount, who explained the Bill to the House in very fair terms, is a nonsense. It is a nonsense for three reasons. It is the clause that talks of the offence under Clause 1—I am putting it in shorthand—and matters connected with it, which, with certain exceptions cannot be referred to in any court or tribunal. Does one know what this means? It means, for example, that Malone would never have got his evidence because it could not have been referred to in cross-examination by counsel that something that appeared to be an unwarranted, a wrong and an unauthorised tapping of his telephone had taken place. That would have been an offence under Clause 1.
The second thing wrong with the clause is this. Post Office workers and the Post Office are included. If the Post Office dismisses one of its employees because that employee is suspected of making an unwarranted intervention on a telephone conversation and the Post Office is then brought before a tribunal for unfair dismissal, then, under this clause, at the moment, the Post Office would not be able to give evidence of the reason for its having dismissed the man. Therefore, again, it is nonsense. Thirdly, it is wrong and a nonsense because until the Government bring in their promised—and they have promised this—civil right of interference with privacy under breach of confidence, then this clause will interfere with what civil rights may be in existence until that law is brought forth.
I have finished, but I believe that your Lordships, being the direct or indirect parents of the Bill, would want, as I have said before, to study its provisions—because the liberty of the subject is at stake—with the very greatest care in the supervening stages of what is a very important enactment.
§ 4.20 p.m.
§ Lord Harris of Greenwich
My Lords, I welcome the fact that we are debating this Bill today, but I do not propose to go through the history of it. I agree with what the noble Lord, Lord Mishcon, said. His version of history was rather more accurate than that of the Home Secretary in another place. That is undoubtedly the position, but I found it remarkable that the Home Secretary spent quite so much time boasting that it was a truly wonderful thing that the Government brought forward this Bill without at any stage referring to the fact that the only reason it was being brought forward was that the Government had been defeated in this House.
However, as we recall from what he said last year, the noble Viscount gave an undertaking then that we would have this Bill and he has entirely fulfilled his bargain, as we would expect. But as the noble Viscount will realise, our debate today is bound to range over rather wider territory than that covered by the Bill itself; for the Bill deals not only with activities involving the police but also those involving the intelligence community. After the report of the Security Commission on the case of Mr. Michael Bettaney and the allegations on the Channel 4 programme involving Miss Massiter, it is clearly our duty to raise these matters in the House today.
First, I turn to the contents of the Bill. I believe that telephone and mail interception is highly necessary in a number of clearly defined and strictly limited circumstances: for instance, where it is the only means of detecting and bringing to justice people involved in serious crime. In such a case I believe it is essential. May I take just one fairly obvious example.
As we all know, we are now faced with an alarming increase in the trafficking in narcotics. This is a major problem in many parts of the country and it is growing, as again we all know, at a most disturbing rate. High quality professional criminals are continuing to move into this trade and are establishing relationships both with the Mafia and with criminal elements in south-east Asia and South America. It seems to me not only desirable but absolutely essential that the police and customs authorities are given encouragement to use both the existing powers and those set out in this Bill to apply for warrants to help them bring to justice these dangerous men and women.
There is only one point that I would make on this to the noble Viscount; it is that in the 1980 White Paper, and repeated in the most recent White Paper, the Government said that a test applied by Ministers in authorising a warrant was whether or not the alleged offence was serious. This is defined—I am aware this happened during the period of the previous Government—as to whether the person concerned, if he had no previous convictions, could reasonably be expected to be sentenced to at least three years' imprisonment. I am bound to say that I find three years' imprisonment rather on the low side. I suspect that in the overwhelming majority of cases where warrants have been applied for and granted by the Secretary of State, they would have been issued even if the test had been five rather than three years. I am bound to say I would prefer the higher figure, and I 1268 hope that the noble Viscount and Ministers will consider this point at a later stage.
Quite apart from issues of crime, there are other circumstances which clearly necessitate the use of intercepts, as the noble Viscount said in his own speech. I believe the case for this approach was argued in the most persuasive terms by the European Court of Human Rights itself in the Klass case of 1978 when it said in its judgment, and I quote:Democratic societies nowadays find themselves threatened by highly sophisticated forms of espionage and terrorism with the result that the State must be able in order effectively to counter such threats to undertake the secret surveillance of subversive elements operating within its jurisdiction. The court has therefore to accept that the existence of some legislation granting powers of secret surveillance over mail, post and telecommunications is, under exceptional circumstances, necessary in a democratic society in the interests of national security and/or for the prevention of terrorism or crime".That is the European Court of Human Rights in the Klass case. As I have indicated, I think it got it just about right, because this country is threatened, as are our colleagues in the European Community, with espionage directed by the KGB and from East European embassies, and also by a sustained campaign of terrorist violence. We have also to accept that the level of collaboration between terrorist organisations is growing. Not only that; there is now regular contact between many of the terrorist organisations, and some of them have even been involved in joint operations. In these respects, I believe the powers set out in the Bill are justified.
But the question before us today is not just whether the Bill deals satisfactorily with these issues and with the Malone case, or whether (to take an example) the members of the tribunal to be appointed under the terms of the Bill should be appointed by Ministers or by some independent authority; it is whether, following recent revelations involving the security service and the secret intelligence service, the Bill should not cover far wider territory. It is this issue I now propose to discuss.
First, when discussing matters of this sort, if we are frank with ourselves we have to accept one deeply unpalatable truth; that is, that as a nation our record in security cases over the past 40 years has been dreadful. We have had the atom spies. They gravely damaged our relations with the United States, to the immense benefit of the Soviet Union. We have had the cases of Burgess, Maclean, Philby and Blunt, all men with a most direct involvement in our intelligence community, all passing on some of the highest secrets of state to the Soviet Union. We had Blake, an intelligence officer who became a Soviet agent and caused the deaths of several of our own agents in eastern Europe. And only two years ago we had the case of Mr. Geoffrey Prime. He was a Soviet agent for 13 years, first with the Royal Air Force in Berlin and later with GCHQ. Then, as your Lordships may remember, Mr. Prime was brought to justice, not as a result of the activities of our own counter-intelligence service but as the result of an investigation into a number of sex offences by the West Mercia police.
Most recently we have had the case of Mr. Michael Bettaney, an MI5 officer who offered his services to the Soviet Union as a spy. I welcome the detailed recent report on this matter by the Security Commission. But 1269 I still find it quite extraordinary that a man involved in highly secret work continued to drink the equivalent of a bottle of spirits a day without it apparently occurring to anybody that it was a good idea to have another look at his positive vetting status. The Bettaney case was serious enough in itself. What made it even more disgraceful was that it was the last in a whole series of scandals which have affected our intelligence community. I consider that this case and the deplorable series of cases that preceded it make it necessary for us to consider whether it is not now essential to write into this piece of legislation specific statutory requirements affecting the accountability of both MI5 and MI6.
At present the position of the Government on this appears to be inflexible. "Leave it to us", they say. "These matters are far too sensitive to allow any outsiders to become involved" they say. The only trouble about that particular argument is that Parliament has followed precisely that advice in the past. They left it to Government after the defection of Burgess and Maclean. They did the same in the Philby case, in the Blake case and in the Blunt case. Two years ago they left it to Ministers after the revelations in the Prime case. Are we in Parliament really going to tolerate the same cosy complacency after the revelations in the Bettaney case?
Then there have been the allegations of Miss Massiter and an unnamed former MI5 officer in the recent Channel Four programme. What was alleged here was altogether different. Two serious charges were made. First, it was suggested that, in deliberate breach of the Maxwell Fyfe guidelines, Ministry of Defence officials obtained information from MI5 about the political beliefs of members of the executive committee of the Campaign for Nuclear Disarmament, for use by Ministers. Secondly, it was alleged that the definition of a subversive, as given by me in this House in 1975 and as was quoted a few moments ago by the noble Lord, Lord Mishcon, was misused so as to enable telephone intercepts to be used against the Campaign for Nuclear Disarmament.
What was alleged here was that a warrant was secured for intercepts against a Communist Party member who was on the executive of the CND and that, as a result, information was obtained relating to many non-Communists in that organisation. I hardly have to say that I am not regarded as a particular friend of the Campaign for Nuclear Disarmament. Indeed, since I was Hugh Gaitskell's personal assistant 25 years ago and watched the CND marching round a hotel in Scarborough chanting "Gaitskell must go", I have regarded the CND as dedicated political opponents.
However, there is a big distinction between political opponents and a subversive organisation. I do not regard the CND as a subversive organisation, either within the definition as given by the noble and learned Lord, Lord Denning, or as given by me in this House in 1975; nor, am I am glad to say, does the Home Secretary, who made his position on that clear. That being so, when allegations of the kind made by Miss Massiter and others are publicised, and widely publicised, I believe that it is necessary that they should be investigated by someone.
1270 I believe that there are a number of possibilities. The first is that which was put forward by Sir Edward Gardner, a Conservative Member of the House of Commons. During the Committee stage of this Bill in the Commons, he proposed that there should be an independent complaints commissioner standing outside MI5 and MI6, who could be approached by members of these two organisations if they believed that some improprieties were taking place. Given the very difficult position of members of both these services, it seems to me to be crucially important that some attention should be given to this particular proposal of Sir Edward Gardner. The commissioner, as recommended by Sir Edward, would, as I have indicated, have a right to look into these complaints by members of MI5 and MI6 and then report his findings to the Secretary of State.
If I may give a single example relating to Miss Massiter, I think it is only right to say that, as I indicated earlier, she alleged that there had been a deliberate breach of the Maxwell Fyfe guidelines—the directive issued by Sir David Maxwell Fyfe when he was Home Secretary some time ago—by members of MI5. I have no idea whether that allegation is true or false, but it seems to me essential that if members of both these services are genuinely concerned about what is going on, they should have a right to go to some independent person who can look into the matter and, if necessary, report on the question to the appropriate Secretary of State. As I have indicated, I think that the House should look at this particular proposal. I believe that it is a modest one and I think that it would represent a considerable improvement on the present situation.
Then there is the far more wide-ranging proposal to establish a small committee—be it a Select Committee of the House, as suggested by the noble Lord, Lord Mishcon, or, as I would prefer, a small committee of Privy Counsellors from both Houses of Parliament—to consider intelligence issues from time to time. I favour that approach. I think it is quite apparent that many of the issues that I have mentioned today raise highly sensitive questions about the efficiency of our two intelligence organisations which obviously cannot be freely debated in public. Unlike other issues, they obviously do not fall into that category. That being so, I believe that it is the responsibility of Ministers to reasure both Parliament and the country that vigorous action is being taken to bring to an end this deplorable series of security blunders which has taken place under Governments of both political persuasions and which, unhappily, has damaged the reputation of both MI5 and MI6 and, for entirely understandable reasons, has led to some lowering of morale among members of both organisations.
I hope that we shall not be told once again that these issues are so sensitive that no one outside Government can possibly be allowed to have any knowledge of them. I believe that that argument would be very hard indeed to accept. First, in the United States, Congress has a degree of over-sight of both the Federal Bureau of Investigation and the Central Intelligence Agency, and the United States has rather more secrets to protect than we do. Secondly, as a result of the sheer scale of past Soviet penetration of our own security organisations, I believe that it would be foolish to 1271 suggest that more damage would have been done to this country's vital interests if there had been some consistent monitoring by a committee of senior Privy Counsellors, than by the lamentable series of episodes which, as we know, have taken place.
I believe that the Government have to accept that there is public disquiet about the past failures of our intelligence community. I hope that they will recognise this and, by agreeing to amendments to this Bill, use it to store the morale of both organisations and public confidence about their competence.