HL Deb 04 February 1987 vol 484 cc199-205

3.4 p.m.

Lord Wilson of Langside

My Lords, I beg leave to ask the Question of which I gave private notice to the noble Viscount the Leader of the House earlier this morning.

The Question is in the following terms:

To ask Her Majesty's Government why the Scottish Law Officers were both unaware of the terms of the original warrant to search the premises of the BBC in Glasgow, which was subsequently suspended in the High Court.

The Lord Advocate (Lord Cameron of Lochbroom)

My Lords, on 29th January of this year Strathclyde Police received a telephone request from the Metropolitan Police for assistance arising out of inquiries in London in connection with an article by Mr. Duncan Campbell in the New Statesman on 23rd January, this year.

The Metropolitan Police requested a search to be made of the BBC premises at Queen Margaret Drive, Glasgow, where it was believed that Mr. Campbell had worked in the course of preparing a series of programmes entitled The Secret Society. A search was also requested of another address which had been occupied by Mr. Campbell while he had worked at the BBC. It was suspected that classified material obtained by Mr. Campbell was retained at these addresses.

On 30th January two officers of the Metropolitan Police arrived in Glasgow and, in company with officers of Strathclyde Police, reported the matter to the procurator fiscal. They requested warrants to search the addresses mentioned above. I was informed of this approach the same morning. It appeared to me that an offence might have been committed in Scotland under Section 2 of the Official Secrets Act 1911. I then authorised the procurator fiscal at Glasgow to make the necessary application to the sheriff for the search warrants requested.

Early in the afternoon the procurator fiscal appeared before the sheriff to seek such warrants under Section 9 of the 1911 Act on the basis that there were reasonable grounds to believe that material relating to highly classified information connected with the preparation of a series of programmes entitled The Secret Society had been communicated within the BBC's Glasgow premises; that evidence of such communication was retained there; and that such communication was in contravention of Section 2 of the 1911 Act. The sheriff took the oath of a Metropolitan Police officer in relation to this and granted a warrant in terms of Section 9 of the 1911 Act.

On the evening of Saturday 31st January I was informed that the BBC were seeking to suspend the operation of the search warrant on the ground that the warrant allowed material to be seized relative to—I quote—"an offence under the Act" and was not restricted to an offence under Section 2. I then instructed that this application for suspension should not be opposed and that a fresh warrant should be applied for, restricted to seizure of material relating to the said offence under Section 2. Subsequently a warrant in such terms was granted by the sheriff and this was executed without further legal challenge. The original application for a warrant was therefore expressly authorised by me, and, on being informed of the challenge to its width, I agreed the amended terms of the revised application.

Lord Wilson of Langside

My Lords, I should have thanked the noble and learned Lord for his Answer to my Question with greater enthusiasm had he indeed answered it. What I think the House is entitled to know is why the terms of the warrant were not looked at in the Crown Office, having regard to the great importance and the implications of this matter, by one or other of the Law Officers themselves, which would have been in accordance, I should have thought—and the noble and learned Lord the Lord Advocate will correct me if I am wrong—with the normal competent practice in that office.

Lord Cameron of Lochbroom

My Lords, as I have set out already, I had reason to believe, or reason to suspect, from the information originally brought to my notice that an offence had been committed in Scotland, and indeed, as the petition sets out, in Glasgow. The noble and learned Lord knows well that the investigation of a suspected offence in Scotland is undertaken in the first place by the procurator fiscal of the district within which such an offence may have been committed. He acts under my authority and, as the House will know, he is a legally qualified officer—one who is independent of the police, I hasten to add. In this case he had responsibility for the district where it was considered that an offence under Section 2 might have been committed in Scotland.

The noble and learned Lord will be aware that it is perfectly proper in these circumstances for the procurator fiscal, once he has received the information which gives rise to securing a further investigation, to proceed if he thinks that appropriate.

It was thought appropriate in this particular case to obtain search warrants. The search warrants are obtained by reference to a petition placed before an independent officer; namely, the sheriff. He had to be satisfied, since in this case warrants were sought in terms of Section 9 of the Official Secrets Act, that the material was sworn to on oath by an officer. That of course was done. It was thereafter for the sheriff to be satisfied on the basis of that oath that it would be proper to grant a warrant, as was done.

I accept of course that in this particular case, as in any other case of an application for a search warrant, the drafting was done by the procurator fiscal, or one of his officials. They are all legally qualified. They are responsible to me. I was satisfied from what I had already heard that, as my officials for whom I take responsibility in this House, they should be authorised to proceed as they did.

Lord Wilson of Langside

My Lords, perhaps I may say that I was not suggesting that there was anything improper in the course which was adopted. I was suggesting—and I suggest again—that the somewhat comic opera situation which had developed, and which brought this warrant before the courts on three occasions, might have been avoided if the warrant had been sent to the Crown Office for examination by the Crown counsel and the law officers themselves before any steps were taken to apply for it—a course which is frequently adopted in circumstances of this importance.

Lord Cameron of Lochbroom

My Lords, I take it that the noble and learned Lord has asked me a question, and I certainly accept it in that frame. I make quite clear to noble Lords that the warrant is of course granted by the sheriff. It is not one which is the doing either of myself or of my official, the procurator fiscal. I put forward, through my local prosecuting official, a petition and adjected to it a crave which invited the sheriff to grant a warrant in certain terms. The sheriff was of course perfectly entitled to restrict it if he felt that the crave went too wide, as the noble and learned Lord will know. I have to say that he did not do so.

I must make clear to the House that, in the body of the petition itself, it was specifically alleged that there had been reasonable grounds to believe that there had been communication of a highly classified material which would, or could, be a contravention of Section 2 of the Official Secrets Act. Therefore, the petition itself contained reference to Section 2. It was for that reason that when I was made aware of the legal challenge I indicated—indeed, instructed—that the suspension of the original warrant should not be challenged and that the further warrant that was to be craved was to make specific reference back to what was stated in the body of the petition. I wish to make clear, too, that there was no change in the body of the petition placed before either of the sheriffs at any stage.

Lord Morton of Shuna

My Lords, does not the noble and learned Lord agree with his learned friend the Solicitor-General for Scotland that it is the duty of the Lord Advocate to ensure that the warrant is sufficient for its purpose? Secondly, should he not ensure that it does not go beyond what is required? Is the noble and learned Lord satisfied that that is the case, bearing in mind what we understand to be the rather restricted terms of the warrant under which the Metropolitan Police acted in London? Was the noble and learned Lord aware of the terms of the search warrant granted in London? Was there some reason for a much wider warrant to be sought for the BBC?

3.15 p.m.

Lord Cameron of Lochbroom

My Lords, I was aware in general that warrants have been obtained in England in relation of course to a different statutory basis under, I believe, the Police and Criminal Evidence Act. That of course does not obtain in Scotland. I was satisfied when I was advised of the basis upon which suspension was being sought that in order to make the matter clear beyond doubt it would be appropriate to seek a fresh warrant to allow the original warrant to be suspended and to include in the crave not a reference simply to an offence under the Act but a reference back specifically to the said offence under the Act. That referred specifically to what was in the body of the petition and had been in the initial petition as much as it was in the subsequent petition.

It was as a result of the further application that the sheriff, again having heard a Metropolitan officer on oath in relation to what was stated in the petition, was prepared to grant the warrant as craved. I simply say that obviously I have looked at the terms of the warrant and at what is contained in the petition and I am fully satisfied that the crave for a warrant goes no further than it would be entitled to by the information placed before the sheriff.

In some ways of course I am judging the sheriff and it is not for me to do so. However, the noble Lord opposite has asked my view and I am quite clear that the crave, as amended, was perfectly justified by the terms of the petition that was placed before the sheriff.

Lord Hooson

My Lords, is the noble and learned Lord the Lord Advocate aware that in another place yesterday conflicting views were expressed by the Solicitor-General for Scotland, on the one hand, and the Secretary of State for Scotland, on the other, as to the duties of the Lord Advocate? The Solicitor-General expressed the view that it was the Lord Advocate's duty to decide whether the warrant met its purpose and that it was not too wide, but the Secretary of State seemed to imply that the sole duty of the Lord Advocate is to authorise the issue of a warrant. Is not the view expressed by the Solicitor-General the correct one? Is it not a fact that the Lord Advocate did not see the warrant, that he did not ensure that it met its purpose and that it was not too wide in this particular instance? Is not the view expressed yesterday by the Secretary of State in another place incorrect?

Lord Cameron of Lochbroom

My Lords, I am grateful to the noble Lord for having asked that question. I do not think that there is any disparity between what my right honourable friends said yesterday in another place. I have of course read what they said. However, I make absolutely plain—as I think I have done in answer to these questions—that I was aware of the source of information, that I was aware of the nature of the inquiry and in what direction it was going.

As regards the precise terms of the petition and the crave which preceded the granting of the warrant by the sheriff, I personally did not know that at the time because, as I have indicated, that was a matter for the responsible legally-qualified prosecutor in the district in which the offence was alleged to have been committed to deal with. I made it perfectly clear when the question of civil challenge was brought to my attention, as was the challenge in the High Court—I then expressed an opinion that to make the matter absolutely clear, if it was not already (and I accept that the more general words "an offence" appeared in the original warrant)—that a fresh warrant should be granted to make it plain that it referred back to what was stated in the petition; namely, an offence under Section 2.

I take responsibility for my procurators fiscal, but in my view it is proper that when they are investigating allegations of offence they proceed with my authority but do so using their legal knowledge. I was aware in general of the need for an application. I take responsibility for what the procurator fiscal did in drafting the petition and the crave. That is the proper duty of a Lord Advocate, I submit to your Lordships.

Lord Hooson

My Lords, would the Lord Advocate kindly reply to the specific question asked? Was the advice given yesterday in another place by the Solicitor General for Scotland correct?

Lord Cameron of Lochbroom

My Lords, as I understood his answer, it may be that I have misread it—he was not suggesting that the Lord Advocate personally is to draft the terms of the petition and the crave for the purposes of securing a warrant. He is saying, as I understand it, what the general responsibilities of the Lord Advocate are. My Lords, when the matter of challenge was brought to my attention then I was bound to have regard to that and give instructions, as I did, in relation to the preparation of a fresh warrant.

Lord Campbell of Croy

My Lords, is my noble and learned friend aware that I have been one of those in this House who for some years has been advocating the replacement of Section 2 of the Official Secrets Act and spoke in favour of the Government's own Bill in 1979 to replace the Act before it was withdrawn after Second Reading because it ran into difficulties? Does my noble and learned friend agree that until Section 2 is replaced it has to be used to protect the security of this country, and should be?

Lord Cameron of Lochbroom

My Lords, I am very grateful to my noble friend. I would entirely agree that while the Act remains upon the statute book it is proper, if information becomes available to prosecuting authorities that there has been a contravention of it, for that matter to be taken further forward by the appropriate prosecuting authorities. I make no comment upon the question of whether or how it is to be replaced. As I understand, there have been debates in the course of an earlier Parliament when an attempt was made to do that, and that failed.

Lord Paget of Northampton

My Lords, is the noble Lord aware that yesterday—and I think on Monday too—the Government made statements dissociating themselves from the comedy that has taken place in Scotland and assuring us that it had nothing at all to do with government and that they were not responsible for it? Now the Minister comes and tells us here that he was in personal command of all that happened. How can these statements be brought together?

Lord Cameron of Lochbroom

My Lords, I do not accept that the Government was in a sense distancing itself in one regard from the matters that were being asked in another place in the last two days. It is perfectly true to say—and I have read what my right honourable and learned friend the Secretary of State said on Monday about this—that he made quite clear in another place what his role was. He also said, as I recollect it, that the application for a warrant had proceeded under my authority. That is my duty as a law officer, as a prosecuting authority responsible for prosecution in Scotland, in which I am totally independent of the Government and of any question of being influenced by the Government. If there had been any question of that, your Lordships may rest assured that I should have known what was my duty in the matter. There was no question of the intervention of government in this matter. The ministerial responsibility is simply mine as Lord Advocate responsible for prosecution of crime in Scotland.

Lord Cledwyn of Penrhos

My Lords, for the purposes of clarification perhaps I may pursue that matter a step further. Can the noble and learned Lord say whether, when he was considering these matters, he was at any time in touch with the Secretary of State for Scotland or any of his Ministers or with the Attorney-General or any English Minister?

Lord Cameron of Lochbroom

My Lords, when I was considering these matters, no.

Lord Morton of Shuna

My Lords, may I ask whether the noble and learned Lord's answer to me means that he was not at the time he authorised the original search warrant aware of the restricted terms of the warrant in London? If he was not aware, is he satisfied that he got full information from the police through his officers?

Lord Cameron of Lochbroom

My Lords, what I was made aware of I have already indicated in response to earlier questions. What I say is that I was aware in general of the fact that there had been warrants granted. The material which was to go forward for the crave of a warrant in Scotland proceeded upon a petition which was based upon information given to the procurator fiscal by police officers, and which was sworn to before the sheriff by a police officer.

I take the view that in those circumstances what was sought was perfectly proper. I refer particularly, of course, to the amended warrant, for the simple reason that I accepted, when the matter was brought to my attention, that to leave the matter general as an offence would not be appropriate; that it ought to be quite clearly stated as being restricted to what was the focus of the inquiries as set out in the petition.

Lord Hutchinson of Lullington

My Lords, would the noble and learned Lord agree that Section 2 is so broad that it behoves him particularly to see that the warrant is limited in its scope? The warrant depends on what was in the petition and what was in the petition depends on the information that the Metropolitan Police officer gave. Would the noble and learned Lord give the House the information as to what was in the petition coming from the Metropolitan Police officer, because it does seem extraordinary to many of us that a body such as the British Broadcasting Corporation should be treated in these circumstances as though it was a bank robber and about to disappear with the documents. The broadness of the warrant here is the mischief about which many people complain.

Lord Cameron of Lochbroom

My Lords, what I will do is to make arrangements for the terms of the petition upon which the crave for the warrant proceeded to be placed in the Library of the House. That will set out what was the basis for the crave for the warrant that was placed before the sheriff. I think noble Lords will fully understand that it would be inappropriate for me at this stage to give any further reference, because, of course, the sheriff was guided by what was placed in the petition itself.

On the more general matter, I have to say that in relation to the petition—as I think I have already made clear—the circumstances in which reference was made to Section 2 of the Official Secrets Act 1911 have been made clear. I would hope that perhaps the noble Lord would prefer to wait to see the petition in this matter.

Viscount Whitelaw

My Lords, I did take the responsibility—which I think has been proved to be entirely correct—of giving permission for a Private Notice Question on this subject. I think the House will agree that 25 minutes on that particular Private Notice Question is a proper amount, and may probably feel that it has had a considerable discussion on this matter and that it would now be fair to allow a very important debate to come on.